In 1986, California voters passed the Safe Drinking Water and Toxic Enforcement Act of 1986, generally referred to as Proposition 65, or “Prop 65”. This law was meant to help consumers and residents of this State be aware of chemicals in their environment, their food or drinking water that had greater than a 1 in 100,000 chance of “causing cancer and birth defects or other reproductive harm.” Theoretically this was a great idea meant to protect the public.
However, in practice this law has been subverted by an industry of trial lawyers claiming to act in the public interest while they use the law to line their own pockets. The problem with this law is that it allows private parties, rather than just the Attorney General of this State, to bring a lawsuit against a company for failing to label their products or location in keeping with Prop 65’s guidelines. Some people, mostly lawyers, are making a very good living by filing lawsuits and getting the companies to offer payments to settle, rather than to go to Court. Private parties are guaranteed 25% of any civil penalties resulting from the suit and are reimbursed for attorneys’ fees, creating a profit incentive for even meritless litigation.
Since the majority of businesses choose to settle lawsuits out-of-court, in order to avoid costly litigation, not risk the unknown gamble of winning or losing the case, and the time involved that would take away their concentration from running their businesses, this makes the odds of winning some money by the plaintiff very high, even if its just a nuisance lawsuit.
Because of the wording of Prop 65, there is no requirement for the plaintiff to show that any actual damage or injury was done.
As of 2015, the Prop 65 list of chemicals was over 900. It does not matter if the chemical in question happens to be naturally-occurring or infinitesimal (parts per billion). It also does not define in many cases what level for any chemical is dangerous or toxic, could cause cancer, birth defects or reproductive harm. All that needs to be proven is whether the owner of the location or the manufacturer of a product “knowingly and intentionally” exposed the public to any level.
In 2013, business paid $17.4 million in settlement payments, of which 73% ($12.4 million) went to attorneys’ fees. The State Attorney General’s office analyzed this data and found that when a business opts to settle the case rather than go to trial, the attorneys take between 70-80% of the settlement.
As a defense against a potential lawsuit, businesses now preemptively post Prop 65 warnings on products and locations – such as in restaurants, beaches, parking garages, and auto repair shops, as well as on marking pens, art supplies, faucets, gardening products, medical supplies, window treatments etc. – even when a chemical is infinitesimal, to the extent that there are so many signs, that they are overwhelming and for the most part ignored. The original intent of Prop 65 has been destroyed by opportunistic ambulance-chasing lawyers.
I personally would rather be chasing a small school of colorful parrotfish off a Belizean reef, than a white ambulance to California Superior Court.