Risk of cancer is defined as a person having an infinitesimal chance (one in 100,000) of developing cancer if exposed over a 70-year period to the chemical. In the case of birth defects, the standard is exposure to 1,000 times the amount of chemical actually present in the product. To put these figures in perspective, it is far riskier driving a car (no warning required in California for driving . . . yet) than contracting cancer from a Prop 65 chemical. The odds of an auto accident are one in 88 each time you drive the vehicle as opposed to the one in 100,000 over a time span of 70-years of contracting cancer. Yet the required sticker on the driver side car window warns about cancer and birth defects from chemicals emitted by car components.
Prop 65 warnings are not free. There’s a major bureaucracy in place to find more cancer/birth defect producing substances, as well as develop and enforce the rules. The list of substances is continually expanding. The original list contained 29 chemicals; the most recent one published in May 2018, lists 975. It is a trap for the unwary. If a business can afford one, it’s a good idea to have a chemical engineer on staff to provide alerts that a product contains one of the current chemicals or when added, a new chemical on the list. Alternatively, expensive lab testing can be procured to determine if a listed chemical is present. Because of periodic additions to the Prop 65 list, that testing will need to be continuous. The failure to post a warning on a timely basis, subjects a business to a punitive fine of up to $2500 per day per violation. Think of the potential fines for Starbucks® restaurants, which offer coffee daily to some 40 million Californians. Until the warning was posted, each cup served carried a potential fine of $2500 – if one person out of every ten bought coffee in California at a Starbucks on any given day, that’s a potential fine of $10 million dollars for the day, $70 million for a week and $3.64 billion for a year . Consumer companies are required to place warnings on each package that contains a Proposition 65 chemical. The cost of compliance of a missed warning is not only the potentially hefty $2500 per day/violation fine, but also a product recall, so that the warning can be added to the product’s packaging. The actual beneficiaries are the trial lawyers who have a major incentive to find violations. They practice “trolling” – finding and submitting a product for laboratory testing that does not contain a warning in the hope of discovering a listed chemical. If the chemical is present, the attorney will bring suit or at the very least, threaten suit, knowing that if he proceeds, he will be reimbursed for his fee and costs and the client (frequently himself) will receive 25% of the assessed penalty. Typically, these days, most companies settle for a lesser fine to avoid litigation. Ultimately, these settlements and fines end up in the price of the product or service.
*The public response to the absurdity of the coffee warning has apparently embarrassed even the California regulators. They commissioned a study (which, of course, found that there was no significant risk of cancer) and proposed a new regulation to eliminate the requirement to warn about the fact that acrylamide, a chemical that remains on California’s list of “known” carcinogens, is present in coffee. The public has until August 30, 2018 to comment on the proposed regulation [https://oehha.ca.gov/proposition-65/crnr/proposed-adoption-new-section-under-article-7-no-significant-risk-levels-section].