A bipartisan effort to overhaul national chemical policy hit another snag recently when Sen. Barbara Boxer (D-Calif.), who chairs the Environment and Public Works Committee, effectively declared the latest proposal dead on arrival. Congress’ inability to update the obsolete Toxic Substances Control Act (TSCA) leaves manufacturers and consumers wallowing in a hodgepodge of unworkable state laws.
One such law is California’s Proposition 65. Most Americans have probably never heard of Prop 65 or the state’s newly implemented green chemistry law. Yet the laws have a major impact on how businesses across the globe manufacture and market their products.
Prop 65 has been a major annoyance to manufacturers, retailers, and consumers ever since voters approved the measure 25 years ago. In short, the law requires a label on any product or establishment that contains a chemical that has even the smallest possibility of causing cancer or reproductive harm decades down the road. The labels don’t tell you what your risk actually is, just that you’re about to enter an area or use a product that contains “chemicals known to the state of California to cause cancer.”
Essentially, if you’ve ever walked into a restaurant or coffee shop in California, state regulators want you to know that having that sip of coffee or glass of wine might give you cancer. (Regulators give no consideration to the fact that many studies show coffee or wine could actually lower cancer risks.) And even if you’ve never been to California, you’ve likely shopped online and seen warnings for residents of California—everything from dried fruit to power tools gets a scary warning label.
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If businesses don’t adequately warn customers about their likely infinitesimal risk of cancer, there are hundreds of lawyers waiting to sue them for noncompliance. Thanks to Prop 65, lawyers have pocketed over $129 million in attorney fees since 2000.
Compliance with the every changing law is tricky. State regulators have added more than 800 chemicals to the list of those that must be labeled under Prop 65. And even though the state has come under fire for listing chemicals that have been thoroughly tested and deemed safe by government bodies around the globe, it hasn’t stopped California from moving forward with an even more restrictive law: the Green Chemistry Initiative (GCI).
GCI allows the state of California to condition, restrict, or ban the use of certain chemicals it deems unsafe to be used in consumer products. Since manufacturers aren’t going to make a different product just for California customers, California will essentially dictate national (and in many cases international) chemical policy without involving the U.S. Environmental Protection Agency or the U.S. Food and Drug Administration, both agencies that are currently in charge of determining chemical safety.
In the absence of federal legislation, other states are joining California and passing their own laws regulating consumer products. Maine, Minnesota, and Washington are among the states that have passed legislation giving their state agencies the authority to list chemicals of concern and then require manufacturers to phase those chemicals out or face penalties.
Federal regulators are far from perfect, but the current patchwork of chemical standards isn’t working. TSCA hasn’t been updated since it was originally passed back in 1976. Instead of allowing California to dictate which products we can purchase at the supermarket, it’s time for Congress to take charge and reform our national chemical policy.
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