Dan Morain

The Conversation: State-ordered warnings generate mixed results

Published: Sunday, Apr. 29, 2012 - 12:00 am | Page 1E

Should the Legislature have the authority to overhaul initiatives every 10 years? Leave a comment at the end of this story, or to send a letter, go to www.sacbee.com/sendletter.

Ira Reiner vaguely remembers the ballot measure he helped champion 25 years ago, back when he was a politician on the rise and groundwater contamination was the crisis of the day.

Proposition 65? Isn't that the one responsible for all those signs that warn anyone who dares enter various premises to beware? the former Los Angeles district attorney asked.

That's the one.

It has done more than require warnings, plenty of it good. Just last month, Coca-Cola and Pepsi announced that they would reduce levels of one of those unpronounceable chemicals, 4-methylimidazole, in their sodas rather than comply with California's nettlesome warning requirement. Not that 4-methyl-whatever could cause harm, the companies hastened to add.

Proposition 65 has prompted other manufacturers to remove lead from ceramics and candy, arsenic from bottled water, and acrylamide from potato chips and french fries. It also has put money into the pockets of lawyers who have found a lucrative niche by suing companies that fail to comply with warning provisions.

Proposition 65 has become a prime example of a ballot measure badly in need of an overhaul. But because voters approved it, the law is almost impossible to change in any significant way.

The Safe Drinking Water and Toxic Enforcement Act has its roots in a time when Superfund sites were in the news in every part of the state.

"Nearly every week sees a new toxic catastrophe," said the ballot argument signed by Reiner, who later ran for attorney general. "Children in Fullerton, Riverside, McFarland, Sacramento and San Jose have already been exposed to chemicals that may make them sterile or give them cancer."

Proposition 65 won in a landslide in 1986, and it fell to the obscure but important Office of Environmental Health Hazard Assessment to identify the chemicals known to the state to cause cancer, birth defects or other reproductive harm.

The agency has compiled an ever-growing list of 774 chemicals. It includes well-known poisons like arsenic, mercury, lead and asbestos. Cocaine and aspirin are listed as reproductive toxicants. Marijuana smoke is a carcinogen. Testosterone is on the list, as are oral contraceptives, and tobacco in its various forms. Earlier this year, the office proposed to list a substance in chewing gum.

Businesses hate it.

In a case pending before the 3rd District Court of Appeal in Sacramento, industry is challenging the Office of Environmental Health's effort to list several substances as carcinogens based on a list supplied by the U.N. International Agency for Research on Cancer. That list includes styrene, which in everything from boats to food containers.

While attorneys fight the issue out in the courts, the rest of us know Proposition 65 by the warnings posted at gasoline pumps, in bars and supermarkets, and parking garages and the walkways between airport terminals and airliners.

If you barbecue this afternoon, take a look at the bag of hickory chips, and you'll see this: "California Proposition 65 Warning. Combustion (burning) of this product, like other cooking methods, produces carbon monoxide and other substances known by the state of California to cause cancer, birth defects or reproductive harm."

Carbon monoxide will kill you. But everything that burns produces it. Don't inhale it. And whatever you do, don't eat the wood chips. And definitely don't wash them down with gasoline.

For businesses, failure to warn can be hazardous to their profit.

The Legislature approved a bill in 2001 that sought to limit drive-by settlements from attorneys looking for quick and easy money. It has done some good. But private law firms reached 327 settlements last year worth $15.9 million.

Of that, attorneys' fees amounted to 74.45 percent, or nearly $12 million. In some of the cases, attorneys' fees amount of 90 percent and more of the settlement amounts.

"Law firms see it as a profit center and run absurd lawsuits that generate preposterous fees," Reiner said.

In December, Attorney General Kamala Harris objected in San Francisco Superior Court to a request for $5.37 million in fees from the Chanler Group, a law firm headed by Clifford Chanler, who lives in Connecticut and Mill Valley, and probably is the most prolific Proposition 65 attorney.

Harris alleged that aspects of the case were "barely litigated," and the billing was "excessive."

The fees stemmed from cases Chanler settled against retailers and others who failed to warn that wallets, purses, belts and other accessories contained phthalates, a substance that makes plastic flexible and translucent, but has the unfortunate side effect of causing birth defects.

Chanler disputes Harris' claims and says his clients "have successfully compelled hundreds of companies to reduce phthalate levels."

Senate President Pro Tem Darrell Steinberg is floating the possibility of an initiative that would allow the Legislature to update initiatives every 10 years. It's not a bad idea.

Assemblyman Henry Perea is a Fresno Democrat whose district includes East Orosi, Lanare and several other small towns where the water has become so fouled by nitrates that residents, most of them farmworkers, cannot safely drink from their taps.

We got to talking about Proposition 65, and he started thinking about the $16 million in settlements of lawsuits in 2011. If he could divert 10 percent of the money from the Proposition 65 settlements, the state could provide immediate relief to the small farm towns.

"The point of Proposition 65 was to make clean drinking water, not to make a few law firms rich," he said.

In the past 25 years, much has changed, but not Proposition 65. Lawmakers could alter it but need a two-thirds vote, never an easy task.

Certainly, the state should continue to investigate and identify chemicals known to cause cancer and birth defects. However, attorneys' fees that reach 75 percent and more of the settlement amount undermine the law. The antiquated warning labels have become silly. When there's a warning on everything, nothing is alarming.

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