Prop 65…What is Going On?

There are a few things in life more frustrating than having rules where the rule makers invested little interest in determining all the scenarios their rule would affect.  Even more frustrating is seeing the rules made and professed to be for a specific purpose when in actuality, the motive has nothing to do with the original intention.  Enter in Prop 65…Known in the state of Cancer to cause California. (yes, that was intentional).

No offense to those good people that reside there, but people that know me know that I already have a bit of a disdain for anything California.  Working for a large motorcycle ecommerce company when CARB was implemented really made things worse.  We carried 30+ exhaust brands and I had to figure out how to sell the products while restricting all the sales to the great state of California…or else!  Thousands of skus to sort through and thousands of angry customers to abide by a law that really has nothing to do with cleaner air and everything to do with money.

Now enter Prop 65. California’s new way to make money off of successful companies without having to lift a finger.  In 1986, California voters approved an initiative to address concerns about exposure to toxic chemicals.  That initiative was promoted under the guise of Safe Drinking Water and Toxic Enforcement Act of 1986, better known by its original name of Proposition 65. Proposition 65 requires the State to publish a list of chemicals known to cause cancer or birth defects or other reproductive harm.  This list, originally had 28 chemicals on it, since then it has grown to include over 800 chemicals.  Keep in mind every chemical that is added to the list means millions in revenue for the state of California.  It’s a wonderful way to employ scientist to test products for compliance and lower that unemployment rate.  A great reason to build new testing facilities for manufacturers to test their goods.  And signs…don’t forget about the millions of meaning less, useless signs that need to be produced.  Signs that say things like “Breathing air in this parking garage can expose you to chemicals that are known to the state of California to cause Cancer and birth defects.”  or “This restaurant uses microwaves which are known in the state of California to cause cancer.”  Yes, that’s right!  Every single place of business has to post one of these useless signs in order to be in compliance with the great state of California.  Now with the new label requirement, anyone who sells product into the state has to abide by these rules or they risk being fined and taken to court.

When I read one of these signs I always ask myself, what am I supposed to do? Am I supposed to stop breathing when I use a parking garage or airplane walkway?  Am I supposed to stop going out to eat?  Somebody please tell me what the correct course of action is for these stupid signs?   I’m under enough stress already.  I don’t need to be reminded of my mortality everywhere I go.  These signs are literally everywhere in California.  Just imagine the dollars being spent to create all of these signs alone.

Now 2018 Prop 65 was updated and new rules were implemented in August stating that each item sold into the state had to carry a label that specifically called out what chemical was contained in the item that the state of California deemed dangerous.  Keep in mind that the burden of proof falls on the distributor.  So, if the distributor carries a product that they determine doesn’t needs a label and it gets questioned by, oh I don’t know, let’s say a sleezy lawyer looking to make a few bucks.  The distributor has to pay for testing to prove the items are under the “Safe Harbor” limits which are determined by the state of California in all it’s “divine” wisdom.  Nevermind all the different behavior patterns we all exhibit.  Why would you consider that everyone uses the products differently?

Let’s take motorcycle handlebars for instance.  For the sake of argument let’s say they are chrome handlebars.  They have Chromium in them and the state of California says that causes cancer.  How do you determine the exposure rate?  Let’s say I ride my bike once a month and Bob rides his bike every day.  Let’s say I wear gloves when I ride and Bob doesn’t?  DO YOU SEE WHERE I AM GOING HERE?  If you don’t label the product trying to prove the rate of exposure is really impossible.

So, what happens to the consumer?  Well besides the increase in price to pay for all of these labels and testing, the consumer gets an influx of warning labels on every product that may or may not have a level of risk, which makes the entire exercise completely meaningless.

For the retailer there are only two options.  If you don’t have a lot of sales in California you can just decide to restrict your sales to the state.  Decide to forego all of the problems and don’t allow sales into California.  Since there is such a large population there, it’s probably not a good choice.

Option number two is to work with the manufactures and spend the money on testing to place a useless label on a product that very few people will even read.  Brilliant!

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