Topic Area: Disclosure Strategies
Geographic Area: California
Focal Question: How CAšs Proposition 65 Revolutionized Human Exposure to Lead
(1) Rechtschaffen, Clifford. How to Reduce Lead Exposures With One Simple Statute: The Experience of Proposition 65. ELR News and Analysis. 10-99. 29 ELR 10581.


Reviewer: Jennifer Radcliffe, Colby '06


In 1986 California voters passed the Safe Drinking Water and Toxic Enforcement Act in overwhelming numbers. Better known as Californiašs Proposition 65, his statute provides a continuously updated list of toxic substances so that the people of California are informed about the risks these chemicals pose to to human health.


When the California government through research and studies becomes aware of health risks involved with human exposure to particular chemicals or toxins, these substances are put on the list (which is also available on the internet). For any chemical on this list businesses must provide a "clear and reasonable" warning before "knowingly and intentionally" exposing anyone to a listed chemical unless the exposures fall below a specified "safe harbor" standard. Businesses have 12 months after the listing of a chemical to comply with warning requirements. Companies that do business in California are also prohibited from knowingly discharging listed chemicals directly or indirectly into sources of drinking water.


A business has a reprieve from the warning requirements or discharge prohibitions if exposure to a chemical occurs at or below safe harbor standards.  These standards specify levels of exposure that pose no significant risk levels for listed. The agency that administers this program has established safe harbor numbers for nearly 250 chemicals to date and continues to develop safe harbor numbers for listed chemicals.


California Proposition 65 has revolutionized the way many industries deal with environmental risk due to its stringent restrictions and reporting requirements on toxic exposure and the legal enforcement actions against companies that violate these rules. What has evolved from this attempt to make risks public is, in many cases, an increase in innovation. One particular interesting example of this occurred in the markets for plumbing equipment that uses lead.


            Lead has been known to be a reproductive toxin for many years. High levels of exposure to can also cause learning disabilities, decreased intelligence, limited attention span, impaired growth, and behavioral problems in children. Adults can be negatively impacted by lead exposure as well. Effects include increased risks of cancer, high blood pressure, and reproductive deficiencies in both sexes.


Although these health risks have been known, the federal government's approach to controlling this risk has been piecemeal and largely ineffective.    Requiring manufacturers to reduce, or where practical eliminate (in the case of drinking water), the risk of exposure to toxic chemicals, combined with the requirement to provide warnings for all remaining exposure, has caused many industries to alter their product (or production process) so as to limit (or eliminate completely) the consumer exposure to lead.


            Some specific types of products that have been drastically changed by Proposition 65 are: faucets, submersible well pumps, water meters, ceramic ware, calcium supplements, lead foil capsules on wine bottles, and crystal decanters.. In all of these cases, Proposition 65 has facilitated taking legal action against these producers and these actions, combined with the warnings, have greatly and rapidly reducer consumer exposure to lead. Rechtschaffen claims that Proposition 65 has been much more effective in protecting consumers and other affected individuals than many federal laws have been and, indeed, ever could have been.


It also provides a rather unique incentive for industries to promote rather than to oppose standard setting. In a typical federal action industries oppose standard setting because the absence of a standard implies the absence of any industrial obligations. Because the warning requirement in Proposition 65, however, is in effect even in the absence of any safe harbor standard. industries want to have this standard set as rapidly as possible.