Excessive Warnings Lead to Big Costs and Diminished Credibility

  Warning: 
Chemicals Known to the State of California to Cause Cancer or Birth Defects or Other Reproductive Harm May Be Present In Foods, Beverages or Shortline Equipment Sold Here. 

Officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, Prop 65 prohibits any person in the course of doing business from knowingly and intentionally exposing anyone to any chemicals on the California list without a prior “clear and reasonable” warning. The prohibition, and corresponding warning requirement, takes effect 12 months after the chemical has been listed. 

The fact that private persons are authorized to file suit to enforce Prop 65 adds not only to the checking accounts of lawyers and sign painters but also the over-warning problem.

It’s important to remember that any California citizen or law firm can file a claim against a manufacturer for any PRODUCT USED in California that does not have an appropriate label. The penalties are assessed for each and every product in California and for each day without the label.

Whoever brings an action for violation of Prop 65 is entitled to 25 percent of any civil penalty, together with costs and attorney’s fees, this often amounts to well over 70 percent of fees paid.

Two recent cases caught our attention. 

 

Trial Lawyers Profit over Taxpayers

Proposition 65 lawsuits are extremely lucrative for law firms. In 2016, businesses paid $30.1 million in Proposition 65 settlement payments. Of that total, a whopping 72 percent ($21.6 million) went to attorneys fees.

In late March, a California judge ruled that coffee sellers must post warnings about the possible cancer risk posed by a compound in coffee. The lawsuit was started by a nonprofit who argued that some 90 coffee houses had failed to give customers a “clear and reasonable warning” about compounds that may pose a cancer risk. 

It’s important to note the culprit was not the coffee itself, but rather, acrylamide, which forms during the bean-roasting process. Never mind that, in recent years, coffee has been shown repeatedly to be a healthy beverage, this lawsuit made a mockery of Prop 65, confused consumers, and did nothing to improve public health.

The fact that acrylamide is in coffee at all, and the coffee makers couldn’t prove that it exists at safe levels, seemed to override any medical evidence about coffee itself.


Glyphosate, a popular herbicide used in commercial weed killers, has raised significant attention after being added to California’s Proposition 65 list. Its listing primarily resulted from the World Health Organization International Agency for Research on Cancer’s (IARC) finding that glyphosate is “probably carcinogenic to humans.”

The glyphosate manufacturer, along with intervening agricultural associations and business groups, petitioned for a writ of mandate challenging glyphosate’s Proposition 65 listing and the state’s reliance on the WHO’s conclusion. The petitioners argued it is improper for California’s legislature and executive to abdicate the power of determining which chemicals are known to cause cancer to a foreign entity that is unaccountable to the citizens of California.

Glyphosate’s Prop 65 listing is controversial in light of an opinion issued by the EPA in December that glyphosate is “not likely to cause cancer in humans.” Seventeen other groups have reached similar conclusions as the EPA, “namely, that the small number of tumors observed in rodents subject to treatment with glyphosate in these studies were not related to glyphosate.”

On April 19, the California State Court of Appeal rejected this challenge to glyphosate’s Proposition 65 listing and dismissed the writ of mandate and complaint. The court found that there has not been any delegation of authority “recognizable as potentially problematic under the law.”

Proposition 65 lays out a broad scheme for determining which chemicals to list, and the court noted that the scheme allows for potential conflicts.

The court observed that the statutory scheme is “inclusive,” regardless of whether identified listing agencies or processes agree. The court found that the statutory scheme provides a framework to identify known carcinogens by relying on third-party determinations, and this determination can be made “if a body considered to be authoritative by such experts has formally identified it as” known to cause cancer. The court concluded that the factual allegations concerning glyphosate’s listing are insufficient to support a claim that the standards or safeguards are insufficient.

Federal Court View: A federal judge found in March that it is unconstitutional to require a statement on labels if it is not an “undisputed fact.” He temporarily blocked California from requiring labeling of products containing the herbicide while that lawsuit continues. The ruling does not interfere with the state’s adding glyphosate to the Proposition 65 list. But if the interpretation sticks, California could be forced to defend the scientific basis underlying the listing of chemicals in order to impose the warning requirements.

What does all of this have to do with shortline farm equipment? 

Do your products contain any of the 900-plus Prop 65 chemicals in grease, lubricants, fuel, hoses, paint, tires, batteries, etc.?

As of August, manufacturers must have a warning label on their product if it contains any one of the chemicals.

So what’s the harm with slapping a warning on everything manufactured sold or used in California? The harm is that warnings over dubious perils dilute the value of warnings.

Warning: Bad laws have a way of sticking around—Proposition 65 was passed in 1986 by 63 percent of the voters. No one expects it to be repealed anytime soon.

Our Association will add a page to our website with links to more information on Prop 65. We’ll also explore scheduling a session during our Marketing & Distribution Convention this fall in Minneapolis.

Learn more at FarmEquip.org/Prop65.