October 31, 1990
"Urgent Appeals to Motions"
San Jose Mercury News
By Timothy Taylor
<< Back to 1990
IN November 1986, an environmental initiative on the California
ballot stirred enormous controversy.
Every major environmental group lined up behind Proposition 65, and traveling
bus loads of Hollywood celebrities toured the state, providing glamorous support.
On the opposing side, business and agricultural interests warned that passage
of the proposition would lead businesses to flee the state in droves, and bankrupt
those who stayed behind.
When the votes were counted, the Safe Drinking Water and Toxic Enforcement
Act of 1986 had passed overwhelmingly, with 63 percent of the vote.
Now, four years later, the high promises, dire threats and strong rhetoric
that surrounded Proposition 65 seem wildly overblown. Strangely enough, it appears
that both the biggest selling point and the biggest potential problems of the
initiative have turned out to be largely irrelevant.
For those who can't quite remember what all the fuss was about, Proposition
65 made two main promises. First, it prohibited business from knowingly releasing
into drinking water any chemical that caused cancer or reproductive toxicity.
Second, it required that business warn people before knowingly exposing them to
these chemicals in any way.
Notice that both of these provisions apply only to business. Proposition 141
on next week's ballot would extend the provisions to apply to state and local
The initiative clearly hit a nerve back in 1986, and the biggest selling point
was people's concern about whether their drinking water was safe. But as it has
turned out, the Safe Drinking Water Act has had almost nothing to do with the
safety of drinking water.
The California Office of the Attorney General sent me a list of all cases of
Proposition 65 litigation that had come to its attention. Only one case, an attempt
to block malathion spraying in the Los Angeles area, is even tangentially related
to a chemical that might have ended up in drinking water. And that case was lost;
the spraying took place.
As opponents of Proposition 65 argued back in 1986, it turned out that laws
for keeping drinking water clean were already on the books, and already provided
greater penalties than those implemented by the initiative. For its main advertised
purpose, Proposition 65 has turned out to be simply unnecessary.
The most threatening potential problem of Proposition 65 turned on how a lack
of clarity in the wording might lead to a flood of lawsuits. Businesses were concerned
that the initiative didn't specify which levels of chemicals required warnings
or at what level of exposure. Moreover, the initiative included a "bounty
hunter" provision giving private citizens a right to sue and collect damages.
Between the confusion of no explicit standards and the incentives for private
suits, business feared that it would be submerged in costly lawsuits. (In the
interests of full disclosure, I should confess that I wrote the Mercury News editorial
opposing Proposition 65 on these grounds and others while working for the newspaper
But according to the state attorney general, only 33 cases have been filed
under Proposition 65 since its passage, through the middle of this month. One-third
of those cases involved arguments over what chemicals should be on the list, but
despite some flagrant foot-dragging by the Deukmejian administration, the chemicals
and standards under Proposition 65 were established fairly quickly.
Despite the "bounty hunter" provision, only two Proposition 65 cases
have been brought by citizens: One was settled out of court, one is still pending.
The expected flood of litigation never arrived.
As it turns out, the second requirement of Proposition 65, requiring warnings
of chemical exposure, has turned out to serve both a pointless and a useful function.
The pointless function is that it has caused every business to post signs everywhere
that warn vaguely that something in the area may include a chemical (usually unnamed)
on the Proposition 65 list.
You may have noticed the warnings outside groceries, at gas stations, in restaurants,
as you enter your workplace, in newspapers, and so on and so on. In fact, one
lawsuit in Solano County actually sued builders for "overwarning." Plastering
vague signs about very minor health risks all over California hasn't helped anyone
but the companies that manufacture the signs, as far as I can tell.
But in some cases, the warnings of exposure to substances linked to cancer
or reproductive toxicity have been more useful. Of the various Proposition 65
enforcement suits, one required warning labels to be placed on cigars and pipe
tobacco; three cases pressured makers of typewriter correction fluid to reformulate
it in a way that didn't use trichloroethylene; another case required a warning
on a medical sterilizer that uses ethylene oxide. A couple of other cases required
warnings about possibly dangerous chemicals in paint strippers and solvents, while
other cases warned against paradichlorobenzene in moth-control products, room
fresheners, and diaper pail liners.
Probably the most important enforcement cases involved pressuring five major
companies in the Los Angeles area to stop emitting ethylene dioxide.
None of these cases are earthshaking; in fact, most of them could have been
prosecuted under existing laws. But Proposition 65 gave them all a push.
Technically, all Proposition 65 requires is that a warning be placed on the
products that contain certain chemicals, but companies often choose to reformulate
their products to avoid having to use such a warning.
It's a good thing to have some pressure on business to substitute less toxic
chemicals wherever possible, and Proposition 65 seems to be providing some pressure
for that to happen. I hope we see more of it.
Moreover, the cases that go to court are only the visible examples. When companies
see the writing on the wall, or are threatened with the possibility of a Proposition
65 suit, they may change their behavior or their product immediately.
The Safe Drinking Water and Toxic Enforcement Act of 1986 is still young. Perhaps
in future years it will be used in outpourings of litigation and enforcement,
validating both the promises of supporters and the worries of opponents.
But although Proposition 65 has turned out to be a sort of cream-of-wheat initiative,
healthy and bland and inoffensive, it is bothersome to me that Californians spent
months listening to arguments on both sides, went and voted, and now have found
that the arguments they voted on were more or less irrelevant to what has actually
The Safe Drinking Water Act was a continuation of what is becoming a California
political tradition: the use of ballot initiatives to rile up the juices of interest
groups that are likely to support particular candidates.
Proposition 65 was written by campaign aides for Tom Bradley, as part of his
attempt to bring out voters who would support his Democratic bid to unseat Governor
Deukmejian. The tactic didn't work for him, but pollster Mervyn Field has argued
that the presence of Proposition 65 on the ballot helped provide Alan Cranston
with his margin of victory over Ed Zschau in the U.S. Senate race that year.
In this year's Democratic primary, would-be nominee John van de Kamp was still
trying to make hay out of his vigorous support for Proposition 65. He also helped
write "Big Green," this year's fuzzy and all-encompassing environmental
Of course, Dianne Feinstein disrupted his personal plans in the Democratic
primary, but since then has adopted the strategy herself.
Ballot initiatives as political tools need to be broad in scope, so they can
stir lots of diverse supporters. They need to be fuzzy on some points, to avoid
alienating key support, and to have special-interest breaks included to attract
other support. They are intended primarily as an emotional rallying point, only
secondarily as legislation.
When confronted with such beasts on the ballot, it's little wonder that voters
become as cynical about the initiative process as they are about the state Legislature
that the initiatives were once intended to check and balance.
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