“Warning labels that warn against any infinitesimal risk are essentially useless,” the popular Consumerist blog observed last week in a discussion of California’s cancer-labels-on-everything “Proposition 65” law. “The outbreak of warning labels spawned by Proposition 65 is so widespread that consumers are being conditioned to ignore them.” Amen to that. In a state where “failure to warn” lawsuits have been pursued against the makers of brass darts, Christmas lights, hammers, mineral oil, billiard cue chalk, picture frames, the iPhone, computer mice, canned tuna, French fries, and even grilled chicken, it may be hard to imagine that things are about to get worse. So hang on to your label-makers.
When Californians first approved Prop 65 back in 1986, the law included four triggers for including a chemical on what lawyers affectionately call the “methyl ethyl death” list—making its use subject to cancer warning labels statewide. The Governor-appointed Carcinogen Identification Committee can add a chemical to the list. So can an “authoritative body” like the International Agency for Research on Cancer. And other government agencies can require California’s Office of Environmental Health Hazard Assessment (OEHHA) to label a chemical as a cancer hazard.
The fourth trigger is a doozy. Although it hasn’t been used since 1987 when the very first Prop. 65 chemical list was put together, it’s about to be resurrected. Here it is in a nutshell: California wants to declare that if the State Labor Code says a chemical is a cancer hazard, then it’s warning labels for everyone!
One problem (and it’s a big one): The California Labor Code’s idea of a cancerous chemical now includes everything that the federal government considers a cancer threat. And the federal Occupational Safety and Health Administration (OSHA) has a definition broad enough to drive a busload of trial lawyers through:
… a chemical for which there is statistically significant evidence based on at least one study conducted in accordance with established scientific principles that acute or chronic health effects may occur in exposed employees. [emphasis added]
The lawyers among you may want to refer to OEHHA’s own Powerpoint presentation for this. And then perhaps you can tell us how the agency will reconcile all this uncertainty with its own official warning labels:
“WARNING: This product contains a chemical known to the state of California to cause cancer.” [emphasis added again]
Here’s the bottom line: Californians may soon find themselves wading through meaningless cancer warnings on products — including food items — whose only real problem is that a single study somewhere found that it may (possibly) cause a health risk. Fortunately, OEHHA solicited public comments on this public disaster, so we gave them a piece of our mind last week.
By the way, Proposition 65’s actual name is the “Safe Drinking Water and Toxic Enforcement Act of 1986.” Just drinking water. Not fries, chicken, or tuna.
It may be time for a special label to warn Californians about their toxic legal environment. Just a thought.