Proposition 65’s requirement for businesses to warn Californians when they use chemicals that California public health officials believe could potentially cause cancer, birth defects or reproductive issues has helped to prod manufacturers to market products to avoid lawsuits, a new study concludes, which the authors of the study said resulted in what they consider "safer" products."
The study, which was conducted by the Massachusetts-based Silent Spring Institute and the University of California, Berkeley, School of Public Health, was published on Feb. 12 in the journal Environmental Science & Technology. Lead author Jennifer Ohayon found that based on her interviews with 32 officials at global manufacturing and retail companies, the California labeling measure has caused them to shift away from the use of substances considered "toxic" under Prop 65.
The state proposition mandates that businesses with 10 or more employees inform the public about their use of about 900 chemicals if they expose people to amounts of those substances that the state of California considers harmful.
Prop 65 has been criticized for encouraging excessive litigation against businesses over labeling issues and for requiring so many warnings that consumers become numb to them.
The California Chamber of Commerce has said that while it supports the intent of Prop 65 to allow consumers to make informed choices about the products they buy, the measure also created a “multimillion-dollar cottage industry” for attorneys to file frivolous “shakedown” lawsuits against companies.
In 2024, the number of Proposition 65 legal settlements numbered more than 1,300, with judgments totaling more than $101 million, according to the California Chamber of Commerce. In 2022, by comparison, the settlements totaled about $26 million.
The Chamber has called for reforms to the existing measure to end excessive lawsuits, improve how the public is warned about toxic chemicals and re-examine the scientific basis for when warnings are needed.
Ohayon said her study shows Prop 65, and its lawsuit threat, have led companies to abandon products, rather than attempt to comply with the law's warning requirements and risk getting sued.
“What we found was that companies, rather than consumers, may be most affected by the law’s warning requirements,” Ohayon said. “By increasing businesses’ awareness of chemicals in the supply chain, Proposition 65 has caused them to shift away from using toxic substances, and that’s a positive step for public health.”
There’s no universal answer to the question of whether the shift away from toxic substances is justified by the tens of millions of dollars in legal settlements that annually result from civil litigation prompted by the measure, she said.
“Whether or not the costs of litigation are justified if they result in safer products depends on what one values,” Ohayon told the Southern California Record in an email. “From our research, however, I can say that while many manufacturers and retailers noted that citizen suits can be fishing expeditions, some asserted these suits give the law ‘teeth’ in the face of government agencies not being given stronger enforcement mechanisms.”
More consequentially, large companies are making decisions to remove ingredients from their products to reduce their vulnerability to such litigation, she said, adding that the overall result is safer products for consumers and less chemical exposure for workers.
But there are instances when businesses replace Prop 65 chemicals with alternatives that are not necessarily safer, according to Ohayon. Some alternatives may be closely related to the listed chemicals, underscoring the need for chemical regulations to focus on a class-based approach, she said.
The study indicated that 78% of those interviewed said Prop 65 spurred businesses to reformulate products, 81% look to the measure to determine which chemicals to avoid and 63% also reformulate products sold outside of California.
“What’s interesting is that companies consistently told us they would rather eliminate a Proposition 65 chemical altogether than post a warning,” the study’s co-author, Dr. Meg Schwarzman of the UC Berkeley School of Public Health, said in a prepared statement.