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Proposition 65 has the devil in its details

Proposition 65, an onerous 15-year-old throwback to environmental extremism in California, continues to languish in Sacramento's bureaucratic purgatory.

While there was disagreement over its impact to date among speakers at the California Plant Health Association regulatory conference, it was generally agreed that it is a law that is almost impossible to amend and equally difficult to administer.

Nevertheless, Joan Denton, director of the Cal-EPA Department of Environmental Health Hazard, is the latest government administrator to attempt to develop clear regulations for administering a law passed by a voter referendum and designed to protect the public from chemical carcinogens and reproductive toxicity. Initially there were 700 compounds listed as fitting those categories, however, that list has been pared down to about 30.

The proposition was passed by two-thirds majority in statewide voting in 1986. It was drafted by environmentalists who carry a “deep distrust for government, but do trust the courts,” according to California deputy attorney general Susan Durbin. It is almost impossible to amend since it requires two-thirds vote of the state legislature or voters to amend — so California is stuck with it.

When passed, many in agriculture predicted an agricultural “train wreck” because of the requirements than any farm product treated with a known carcinogen — regardless of its risk — be slapped with health warning labels. That has not happened, but warning signs are posted in most businesses in the state from gas stations to bars warning of presence of carcinogens in gasoline, smoke and similar products.

They have been posted so long they are largely ignored.

Threat remains

However, Jasper Hemphill, former chief lobbyist for Western Growers Association, who is now with the Sacramento law firm of Kahn, Soares and Conway, said the threat to agriculture remains if similar signs are required on boxes of fresh fruit and vegetables and in grocery store produce sections.

If ever mandated, this would put California growers at a significant disadvantage to producers from other states or nations who would not be required to have warning labels. Its also would become a non-tariff barrier for California food exports. These warning labels would only create unwarranted obstacles to people consuming healthful fruits and vegetables.

For more than a decade, California government agencies have tried what Hemphill said “brings order and clarity to a very poorly written statute.” An effort that began shortly after the proposition became law ended in 1992 in failure.

Rather than onerous regulations, the biggest fallout from the law has been a “cottage industry of bounty hunters.” These are people who scour businesses in search of intentional or more likely unknowing Proposition 65 violators. If violations are founded, these bounty hunters collect rewards and violators pay fines.

“There is one attorney, Mark Shapiro, who has collected $1.5 million in attorney fees for Proposition 65 violators yet less than $500,000 in civil penalties have been levied against violators,” said Hemphill.

Seeks statute clarity

Very few of these violations reach court and are settled out of court with the bounty hunters reaping the rewards. Durbin said there have been very few precedent setting Proposition 65 court cases.

Proposition 65 contains 35 regulatory sections and since January Denton has been meeting with Prop 65 stakeholders trying to bring some clarity to the statute with a self-imposed deadline of July 2002.

One of those stakeholders is a Prop 65 coalition of agricultural interests directed by Hemphill's law firm.

Hemphill said because of the contentious nature of Proposition 65, it has largely been stonewalled by the unclear regulations and objections from the business and agriculture communities.

“Fifteen years after the proposition was passed, nothing has really happened with it,” said Hemphill.

That comment drew a sharp response from Durbin, who admitted voting against Proposition 65, but now says it has “made a difference.”

Proposition 65, she said, has made business “more aware” of chemicals used in business and products.

She cited two examples: lead is no longer in calcium tablets and that has made an important difference to the women and infants who take calcium. Also, she said business have become more aware of the carcinogens they may have been unknowingly emitting into the air. And, many products have been reformulated to eliminate Prop 65 compounds yet remain effective.

“Proposition 65 has made a significant impact,” she said. “People are more aware of the importance of what they put in products and what they do in business.”

However, Hemphill does not back off his prediction that a “train wreck” is waiting to happen to agriculture unless the regulatory aspects of Prop 65 are clarified. That is what Denton is pledging to do.

“The devil is in the details,” she said. “Proposition 65 needs to move along simply because it needs to be done and I want to do everything to make it happen.”

She pledged to give every stakeholder a valid voice in those details.

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