The complexity of Prop. 65 was compounded in May, 2008, when the California Office of Environmental Health Hazard Assessment (OEHHA) announced that it had the authority to automatically add chemicals to the Prop. 65 list under Labor Code Section 6382 (d) (Labor Code Mechanism). Under its erroneous interpretation of Prop. 65, OEHHA began listing chemicals without review from the state’s qualified experts, and without any process to take into account scientific information about the chemical.

Since assuming authority, OEHHA has added dozens of chemicals that contain elements in everyday products such as carpet, cosmetics and personal care products, as well as critical pharmaceutical products. This expansion of OEHHA’s authority over Prop. 65 was challenged by the California Chamber of Commerce as well as other business groups.

Arthur L. Lawyer, president of Technology Sciences Group Inc., a consulting firm that specializes in Prop. 65 compliance, said a major problem is that the political realities in California make it difficult to amend the law – or modify the regulation implementing it – even points that are scientifically indefensible. “We can’t move forward in this regard because of strong California advocacy on both sides of the issue,” Lawyer said. “For example, it would be nice to have a better mechanism by which the government could guide industry about what exactly is a safe use under Prop. 65.”

I agree with Dr. Lawyer. In a perfect world, Prop. 65 would be tossed in the proverbial wastebasket and redrafted. But given the politics of California, that is highly unlikely.

However, there are two changes that might right many wrongs. The first: change the burden of proof to keep the attorneys at bay. If plaintiffs have to incur the cost of proving exposures about the “no significant risk” and “no observable effect” levels, then many of the abuses commonly seen today are likely to stop. No longer could plaintiffs count on defendants to roll over because the costs of litigation are so high.

Secondly, let’s bring reality to the risk-assessment methodology. The current structure often greatly exaggerates risk, requiring warning labels in many circumstances where the risk of exposure to the listed chemical is minimal. If a product is used daily on a regular basis, then the risk assessment should reflect such use; if the product use means minor exposure, do not make absurd risk assessment assumptions. As it is currently written, Prop. 65 has a 70-years-of -exposure baseline (at a rate of 24/7) for risk assessment, which is unrealistic.

Lastly, Prop. 65 should orbit around health and communication issues, not a legal one. Why would we think that a bunch of lawyers, however well-meaning, know best how to communicate risks and benefits? They need to play a reduced role.