The Hidden Success of a Conspicuous Law: Proposition 65 and the Reduction of Toxic Chemical Exposures

77 Pages Posted: 14 Dec 2020

See all articles by Claudia Polsky

Claudia Polsky

University of California, Berkeley - School of Law

Megan Schwarzman

University of California, Berkeley

Date Written: December 1, 2020

Abstract

Newcomers to California could be forgiven for thinking they have crossed into treacherous terrain. By virtue of the state’s Proposition 65 right-to-know law, store shelves and public garages everywhere announce, “WARNING: This [product/food/facility] contains chemicals known to the State of California to cause cancer [or reproductive harm].” The proliferation of consumer warnings about toxic exposures in everyday life has made Prop 65 highly controversial, as has the degree to which the law incentivizes citizens to sue businesses for failure to warn. Both features make the law recurrently vulnerable to weakening in Sacramento and preemption in Washington, D.C.

Against this backdrop—and at a time when Prop 65 faces a live preemption threat in Congress—this Article tells a new story about the law’s considerable benefits in reducing exposure to toxic chemicals. Looking beyond Prop 65’s known direct effects in prompting warnings and enforcement suits, we use original archival research and qualitative interview data to identify hidden modes by which the law reduces toxic exposures in California and nationwide.

This Article presents evidence of three previously unexplored or under-explained mechanisms of salutary Prop 65 action, in: (1) spurring direct regulation of specific toxic chemicals; (2) seeding broad supplemental chemical regulatory regimes; and (3) disseminating information about toxic chemicals in previously information-poor business-to-business and consumer marketplaces, with transformative effects on commerce. We conclude that assessing these modes of action is necessary to any fair evaluation of the merits of Prop 65.

Keywords: Proposition 65, toxic chemicals, toxics, chemical exposure, right to know, ingredient disclosure, consumer product safety

Suggested Citation

Polsky, Claudia and Schwarzman, Megan, The Hidden Success of a Conspicuous Law: Proposition 65 and the Reduction of Toxic Chemical Exposures (December 1, 2020). Forthcoming, Ecology Law Quarterly, Vol. 47, No. 3, 2021, Available at SSRN: https://ssrn.com/abstract=3740906

Claudia Polsky (Contact Author)

University of California, Berkeley - School of Law ( email )

Boalt Hall
Berkeley, CA
United States

Megan Schwarzman

University of California, Berkeley

310 Barrows Hall
Berkeley, CA 94720
United States

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