What is California Proposition 65?
“Prop 65” is a piece of legislation approved by ballot initiative by California voters in November of 1986. Also known as the Safe Drinking Water and Toxic Enforcement Act, the original purpose of the law was to prevent the dumping of toxic chemicals in waterways. At the time, the list of known or suspected carcinogenic (cancer-causing) and reproductive toxins identified by the State of California numbered about three dozen. Today, however, this list, which is updated annually by the California Office of Environmental Health Hazard Assessment (OEHHA), contains more than 800 chemical substances.
Why we add a warning label?
California Proposition 65 requires that many kinds of consumer goods sold in California, including herbs and other dietary supplements, contain a label with language similar to the following: Warning: This product contains chemicals known to the State of California to cause cancer and birth defects or reproductive harm. In California, this label is typically found on electrical components (especially wiring), luggage, flashlights, jewelry and glassware, to name just a few items — but it’s also found on fresh fruits, vegetables and nuts. This warning is also required to be posted in a conspicuous place at hotels, restaurants, gas stations and other public places. We include the warning label on our products to remain fully compliant with this law.
Does this mean that the product is dangerous?
No, it does not. However, although the intent of the warning label is to protect consumers, it does little to inform them. In other words, the law requires the inclusion of this label even though it says nothing about the actual safety of the product itself or what, if any, harmful substance is present and in what amount. In addition, the “safe harbor” of acceptable levels for certain substances set forth in Proposition 65 are often significantly lower than federal or international standards. Not only are these levels nearly impossible to detect with routine testing, but their inclusion is usually the result of naturally occurring processes.
What kinds of substances are we talking about?
While the list of offending chemicals is extensive, the majority are understandable. Some, however, are naturally occurring substances that have increased in volume due to human activities. For example, arsenic is a deadly poison, but is also a trace element found in low concentrations in soil, air and water. Some comes from volcanic ash, but most environmental arsenic persists as the direct result of burning fossil fuels.
Another example is lead. In the U.S., lead exists in virtually all soil at an average of 16 parts per million (ppm). Due to the extensive use of lead-containing paints, fuels and other products in previous decades, low-level lead concentration in soil is now considered to be 500 ppm and 1,000 ppm at the high end. A small amount of this lead is absorbed by plants. For dietary supplements, including herbs, the safety standard set by the U.S. Food and Safety Administration (FDA) for lead is 10 ppm. The Proposition 65 standard is 0.5 micrograms per day – almost 1,000 times lower than the level at which the FDA deems a potential health risk. To put this into perspective, spinach and carrots, whether organically grown or not, contain between 3 ppm and 6 ppm of lead.
Here’s the thing… Although the spirit of the law is intended to ensure public safety, the way it is currently implemented undermines consumer confidence and makes companies in the natural products industry—even farmers and wild crafters—responsible for environmental pollutants caused by other, less regulated industries. It also places the burden of proof relating to the safety of any product on companies who are forced to demonstrate that a warning label is not necessary. Finally, because enforcement of Prop 65 is conducted via civil litigation, the law, as written, triggers frivolous lawsuits that are difficult, if not impossible, to defend against.