Claudia Polsky of Berkeley and Megan Schwarzman of Berkeley's School of Public Health have written The Hidden Success of a Conspicuous Law: Proposition 65 and the Reduction of Toxic Chemical Exposures, 47 Ecology Law Quarterly, (Forthcoming 2021). Here is the 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.