An NGO study has found that two Proposition 65 private enforcement actions resulted in significantly lowered lead content in certain products. And study co-author the Center for Environmental Health (CEH) says that this is evidence that Prop 65 litigation can prompt safer product reformulations nationwide.
California’s Proposition 65, which was passed by voters in 1986, requires warning on products exposing consumers to chemicals that can cause reproductive harm or cancer. A unique aspect of the law is that it allows private persons or organizations to take legal action against alleged violators – and be awarded 25% of penalties assessed.
In the study, the CEH – a frequent plaintiff in ‘private enforcement’ litigation – used a proprietary dataset and one from the California Department of Public Health (CDPH) to look into the long-term impact of such enforcement. It found “dramatic reductions” in chemicals of concern in the two cases it evaluated.
Data showed, for example, that faux leather purses made with lead-containing pigments declined from 34% to 8% over the course of seven years. And online sales indicated that the reduction was nationwide, the study found.
Michael Green, CEO of CEH, said the findings “illustrate why Prop 65 has been so effective in protecting millions of consumers from harmful chemicals without imposing costs on businesses and consumers.”
The threat of litigation, he continued, makes “companies respond by providing products that are safer and more environmentally friendly.”
Industry, however, has raised concerns that the opportunity to win settlement fees has given rise to a ‘bounty hunter’ environment, where the burden of proof rests on businesses to demonstrate that a warning was not necessary for a product.
The most recent annual report from California’s Office of the Attorney General shows that the total settlement payout for Prop 65 cases exceeded $25m in 2017.