[Source: Los Angeles Times] Vermont Soap’s feel-good natural products came with everything a California consumer had come to expect: an organic certification, a non-GMO seal of approval, a “cruelty free” bunny silhouette. And a warning that it harbored a “chemical known to the state of California to cause cancer, birth defects or reproductive harm.”
Confused? So was Larry Plesent, who founded his soap company in presidential candidate Bernie Sanders’ liberal home state on the notion of replacing “yucky” chemicals with “yummy” natural ones.
That was exactly what Proposition 65’s architects had in mind when they convinced California voters to approve the ballot initiative in 1986 — to coerce companies into replacing toxic chemicals with safe ones rather than bear the burden of a Scarlet Letter stamped on their products.
More than three decades later, Plesent and many other manufacturers find themselves at odds with a lawsuit mill that has grown around Proposition 65, which gave citizens the right to prosecute companies through the same county courts that handle divorces and fender-benders.
“I think the original intent was very positive,” Plesent said. “But political forces became involved to make Proposition 65 overwhelming, overreaching, overdone and overblown.”
In Plesent’s case, he feared he could be sued over those same yummy natural replacements. One of them, a compound found in carrots, hops, lemongrass, and cannabis, had been linked to cancerous renal tumors in male rats that were force-fed large quantities of it, five days a week, for up to two years. That earned it a place on the Proposition 65 list in 2015, over objections from the makers of sustainable products and carrot growers.
Plesent made a strictly business decision: “We do not wish to fight against California.” He added a warning.
Plesent is not alone. Companies in every sector of the consumer economy now routinely attach warnings for any of the more than 900 chemicals and elements covered by Proposition 65, without testing for them or attempting to reformulate products. They fear citizen-enforcer lawsuits more than they fear freaking out customers.
That profusion of warnings has subverted Proposition 65 and left Californians, and increasingly anyone who shops online, overwarned, underinformed and potentially unprotected, a Times investigation has found. And in the process, hundreds of millions of dollars have been funneled to a handful of attorneys and their repeat clients.
Proposition 65 warnings now greet guests at Disneyland, drivers at California parking garages, visitors at hotels, shoppers at car dealerships and lunchgoers in fast-food lines.
Where Proposition 65 prosecutions once targeted notoriously hazardous toxins such as mercury found in hemorrhoid suppositories and lead in spiced Mexican candies, they now claim that cancer, birth defects or reproductive harm might arise from dalliances with bondage tape or from opening a Bible; from grasping a pair of pliers with bare hands, or donning polyurethane-coated safety gloves. From chewing on the plastic frames of glasses, leaving them on your nose, or touching the zipper pull of their carrying case. From smoking pot, and burning the rolling papers used to twist it up. From casting a plastic lure on a lake.
In the early years of Proposition 65, state attorneys general filed actions against industrial polluters and makers of widely used products with high concentrations of toxins — they won agreements limiting lead in ceramics and acrylamide in French fries, for example.
These days, the attorney general’s office files few cases. More commonly, it pushes back against abuses by the primary enforcer empowered by the fine print of Proposition 65 — citizen prosecutors who have filed more than 30,000 violation notices under the measure since it went into effect in 1988.
Four consecutive attorneys general have accused these citizen enforcers and their attorneys of preying on companies that can ill afford to defend themselves, of filing weak or frivolous cases, collecting unreasonable fees, and offering illusory remedies in settlements that vaccinate companies from further accountability for their products.
One $100,000 settlement over lead in salsa didn’t eliminate lead and didn’t result in a printed warning, either; it changed fine print on the label — the “portion” went from a tablespoon to a teaspoon. Another settlement for $40,000 tried to resolve an acrylamide exposure case by changing the preheating instructions for frozen organic potatoes before the attorney general declared the settlement contrary to the law, against public policy and unenforceable.
A plumbing company in 2017 agreed to confidentially pay one San Diego plaintiff’s lawyer nearly $15,000 without promising to change anything about phthalates in dryer hoses. The accord was withdrawn after the attorney general said it “appears simply to be a payment to the enforcer and her counsel in exchange for the agreement not to sue.”
Legislative attempts to curb such behavior temporarily slowed the rise in Proposition 65 prosecutions, reined in their costs and limited the shares collected by perpetual plaintiffs and their attorneys. But 2018 saw a record of 829 settlements totaling $35 million, according to the most recent data from the California attorney general’s office.
Litigating Proposition 65 enforcement has cost businesses more than $370 million in settlements since 2000, according to the state. New labeling requirements alone are expected to cost California companies between $410 million and $818 million over the next decade, the state Chamber of Commerce estimates.
No public agency verifies how many warnings get posted, nor whether all the promises companies have made to private enforcers are kept.
More than three decades into California’s right-to-know revolution, consumers today don’t know much about the health risks posed by consumer goods. It’s nearly impossible to tell whether to put down a product bearing a warning and choose one without it — either one may present a high risk, a low risk or no risk. The deepest internet dive is unlikely to surface an answer before consumers reach the checkout or finalize their order online.
That kind of information is buried in the back pages of civil court settlements that horse-trade consumer safety and business costs. None of those legal battles goes to a jury. Few go all the way to a judge’s ruling. Millions of dollars change hands. A tiny portion goes to the state agency charged with protecting consumers from toxic exposure.
Attorney fees account for nearly three-quarters of the more than $300 million that has been paid out in Proposition 65 settlements since 2000, according to state data. The lion’s share of that goes to a handful of habitual litigants, several of which amount to opaque front groups with closer ties to attorneys than to California consumers, The Times has found. Meanwhile, shoppers have grown inured to the warnings.
This was not what Bay Area environmental attorney David Roe had in mind when he drafted Proposition 65 as a market-driven alternative to government mandates that would persuade companies to clean up to avoid having to “fess up.”
“From my perspective, every warning is a failure,” said Roe, who believes that meaningful compliance still predominates over abuses. Proposition 65 permanently changed the way companies assess risk and choose ingredients and took tons of toxic chemicals out of production. Most companies quietly clean up their act, he said.
But the process, he said, isn’t perfect.
“The thing about private enforcement is that everybody can do it,” Roe said. “You get the good, the bad and the ugly.”
Born to fail
Not even Roe thought Proposition 65 would pass in 1986. Few sweeping environmental ballot measures had survived vigorous industry-funded counter-campaigns.
But Los Angeles Mayor Tom Bradley, a Democrat, needed help in his gubernatorial rematch race with Republican incumbent George Deukmejian. Political strategists such as Tom Hayden, then a state assemblyman, and his wife at the time, Jane Fonda, saw toxic pollution as a way to draw liberal-leaning voters to the polls and exploit a political weak point for Deukmejian, who had vetoed several toxic cleanup bills.
Hayden, among others, bankrolled the measure. But it fell to others to write it.
“What was in it — the content — didn’t really matter to that strategy at all,” said Roe. “It was about the headline, not the fine print.”
Details fell largely to Roe and a couple of other environmental attorneys. “It’s a very unusual design,” Roe said. “You would never have been able to draft, by committee, anything as innovative as Prop. 65.”
Bradley lost. Proposition 65 won, by a 2-1 margin. The fine print suddenly mattered. And in that fine print were the seeds of Proposition 65’s successes and excesses.
The Safe Drinking Water and Toxic Enforcement Act, as Proposition 65 was formally known, said that “no person in the course of doing business shall knowingly discharge or release a chemical known to the state to cause cancer or reproductive toxicity into water” or anywhere else where it might lead to a drinking water source. It also said that “no person in the course of doing business shall knowingly and intentionally expose” anyone to those chemicals “without first giving clear and reasonable warning.”
The usual people would enforce it — the state attorney general and local district attorneys. But so could “any person in the public interest.” Those words deputized citizens to sue anyone exposing Californians to toxins in the products they used.
Determining what constituted a toxin — and how much was unsafe — fell to the state, which listed scores of chemicals identified in existing law or by other agencies. Two panels of appointed experts also could add chemicals based on the expertise of reputable agencies, or look at the science and decide for themselves.
Lawsuits eventually forced the state to also consider toxins linked only to cancer in animals. The list has since grown to more than 900 chemicals and elements.
That broad and cautious view of what’s considered risky for Californians is why Plesent, of Vermont Soap, opted to issue a warning with his products in 2015, over the flavor and fragrance compound beta-myrcene, which had been linked to renal cancers in rodents.
“That doesn’t mean that if you wash with lemongrass soap you [will] be in danger,” said Plesent. “There’s a difference between 2% to 3% essential oils in a wash-off product and 100% essential oils being force-fed down your little mouse throat.”
Telling that to a judge can be prohibitively expensive — Proposition 65 places the burden of proof on the defendant, a reversal of the “presumption of innocence” principle that otherwise underpins the U.S. justice system.
So Plesent surrendered without a fight. “We can’t test everything. … So we’re going to put this warning on,” he said.
One customer then demanded a refund for $7,000 worth of goods she had bought to start her own private-label line of “nontoxic” bath goods. Plesent complied. Vermont Soap now refers customers to a five-page explainer on risks associated with essential oils published by the American Herbal Products Assn. industry group.
“The issue kind of went away,” Plesent said.
If the issue doesn’t go away, companies turn to Mike Easter.
Easter is an environmental toxicologist and attorney who has helped companies win state-sanctioned “safe use” concentrations for Proposition 65 chemicals, protecting them from prosecution. That remedy is so strictly limited that the state has granted only nine of these in 32 years, out of the more than 100,000 products that have been targeted by citizen prosecutors.
Two years ago, the sports fishing industry hired Easter after citizen enforcers accused member companies of exposing the lure-fishing public to illegal doses of phthalates, common plasticizers that can rub off their barbed versions of squid, shad, and frogs.
Among other facts, Easter dug out how many times sport license holders fished (18.3 times a year on average, according to the American Sportsfishing Assn.), for how long (six hours), how many times they might touch a lure during that time, how much of the phthalates might transfer to their fingers, how often those fingers might touch their mouth area when they ate or smoked, and how all that would play out over years of recreational fishing.
He used the results to figure out the maximum concentration of phthalates that could be on lure makers’ ersatz baits before they exceeded the daily dose set by the state — a level that is set 1,000 times lower than the conventional zero-effect threshold used in toxicology. A judge approved a $90,000 consent agreement last year.
The seven companies signing the settlement know how much phthalates they can use before warning anglers. Other lure makers can join the agreement for $2,150 to $59,150, depending on their size.
That kind of science-driven accord is time-consuming and expensive. Plaintiff attorneys have sought more than $1 million in fees in each of several long-running cases, according to court records.
Most times, attorneys just work out a less expensive compromise. That’s what happened in the case of companies selling tea.
A tempest over tea
Over the course of two years, dozens of tea companies shelled out more than $1 million to one citizen enforcer and her attorney. They walked away without having to do much of anything about lead allegedly found in their tea.
They also did not submit as evidence anything like the analysis Easter does. Figuring that out was too risky for either side, the plaintiff attorney told a judge. So they horse-traded.
The cases show how Proposition 65 can leave the consumers with the right to know almost nothing, including whether a pregnant woman might be condemning her future child to learning disabilities brought on by lead exposure.
Here’s how that happened.
In 2016, Sacramento environmental engineer Whitney Leeman served violation notices to more than three dozen tea companies, alleging their infusions exceeded Proposition 65’s lead exposure standards. The notices warn companies that they have 60 days to work out a deal or face a lawsuit. That waiting period gives public prosecutors such as the attorney general and county district attorneys a shot at taking over the case on behalf of the public. None did.
Among the most prolific citizen prosecutors using Proposition 65, Leeman has collected more than $550,000 in bounties (a 25% share of civil penalties) since 2001, attorney general records show. The Berkeley-based firm that has represented her, the Chanler Group, has collected more than $7 million in fees from those cases — part of the more than $55 million the firm has collected in Proposition 65 fees over 20 years, according to state records. Along the way, Clifford Chanler, the firm’s founder, has drawn the ire of attorneys general and members of Congress, one of whom likened him to the extortionate troll under the bridge from the fairy tale “The Three Billy Goats Gruff.” Chanler calls that a “cheap shot” and defends his record.
“Our work was the undisputed catalyst in large settlements brought by public enforcers that mandated chemicals such as lead being removed from the inside and outside of bottles of Coca-Cola, Pepsi and Dr. Pepper, among other items,” he wrote in an email reply to questions from The Times.
Small tea companies quickly settled the accusations by promising to keep lead to a barely measurable level — effectively zero — or warn consumers. The settlements drew no public attention from the attorney general.
Nineteen companies banded together and went to court to defend themselves, led by Starbucks, maker of Teavana. Starbucks hired a top gun who knew Leeman, Chanler and Proposition 65 well — Michele Corash, who had advised opponents of the ballot measure back in 1986 and had won a milestone exemption for the meat industry, nullifying cases Leeman and the Chanler firm had filed against meat companies.
Within months, though, the two rival litigants found themselves on the same side, trying to persuade a judge to accept a compromise settlement. But first they had to fight state Atty. Gen. Xavier Becerra.
Becerra’s office had ended its silence on the cases with a rare intervention and bombshell disclosure in court: Based on what both parties were now offering as a “safe” level, almost none of the companies had ever violated Proposition 65.
Becerra based that on the confidential product tests Leeman had submitted to his office — and that by law, only his office sees. The tests showed that 15 of the 19 companies had never brewed tea with lead above the newly bargained standard both parties were asking the judge to approve, Becerra’s office revealed. That would leave most of the defendants free to serve the public the same old tea, he said. That might suit the parties to the lawsuit, but it didn’t serve the public interest, Becerra’s office argued.
Corash, the attorney for Starbucks, came to Chanler’s defense.
“Everyone benefits, including the public, from having a standard,” she told San Francisco County Superior Court Judge Harold E. Kahn. Besides, the state stood to collect substantial penalties as part of the settlement, she reminded him.
Kahn approved the accord, along with fees for Chanler Law Group: $480,000. Leeman collected her 25% bounty from the penalty, or $26,250. The state got the rest: $78,750.
Chanler told the judge his expenses far exceeded what he collected. Other companies that had quietly settled before the Starbucks case benefited retroactively. Agreements in 13 of those early cases included a clause that allowed the companies to adhere to any future standard set by Leeman — and the Starbucks agreement now set it 10 times higher than the “all-but-zero” level to which they had agreed, according to court records.
Leeman and Chanler were not done with the tea aisle. Four months after the Starbucks settlement, they filed violation notices against three more tea companies: Bigelow, Hain Celestial and a distributor, Walong Marketing.
Becerra’s office publicly demanded the pair withdraw those cases — they had “no merit” based on what he knew about their test results, he wrote. Such public demands amount to scolding — they hold no consequences if they’re ignored, and Chanler ignored them. Deputy Atty. Gen. Harrison Pollak met them in court before the same judge who had rejected Chanler’s arguments in the Starbucks case.
Pollak argued that the cases were “an abuse of Proposition 65.” How could Leeman and Chanler prosecute companies whose teas never exceeded the standard they had just fought to establish a year earlier, before the same judge, in the Starbucks cases?
Again, it was the attorney for the tea companies who fought the attorney general. The defendants, attorney Trenton Norris argued, wanted an even playing field — the same lead limit their competitors had won in the Starbucks case. Even though they hadn’t failed that Starbucks standard, they were willing to pay $58,500 apiece ($19,500 for Walong) to settle the dispute and keep from being sued over it again.
Kahn would have none of it this time. He threw out the settlement and dismissed the three cases.
Fighting for a settlement, despite no evidence of a violation, was not as unusual as it might seem, said lead attorney Norris, representing Bigelow and Hain.
“We look at cases all the time that are completely without merit but are too expensive to litigate,” Norris said. “You have to explain all the science to a judge who maybe last studied chemistry in 1968.”
Chanler told The Times that he was prepared to do the science at trial, and show that lead concentrations at or below the eventual compromise standard — 10 parts per billion — would still have exposed consumers to a dose of lead above the Proposition 65 limit. He also said he had additional tests showing even higher lead concentrations.
His client, Leeman, suggested that the attorney general could have taken a stronger role in the case — the office has taken over citizen prosecutions in the past, reaching several milestone agreements on products such as ceramics, candy, jewelry and toys.
A Starbucks spokesperson said the company is “committed to providing safe, quality products for our customers.” The company declined to answer detailed questions about the case.
Tea seller Bigelow has said the most lead it has detected in its brewed teas was one-fifth the amount of lead allowed in federal drinking water standards. Hain Celestial representatives didn’t respond to requests for comment. So is tea safe?
Not enough for Gerry Schwalfenberg, a University of Alberta doctor whose toxicology study helped draw attention to heavy metals absorbed from soils by tea trees. He avoids any tea from industrialized areas of China.
“I would say it’s still beneficial to drink tea, but don’t drink it from places that have excess lead,” Schwalfenberg said.
By comparison, Proposition 65 settlements have allowed 30 times more lead in chocolate, 10 times more lead in spicy Mexican tamarindo candies, six times more lead in the salsa whose serving size was reset to a teaspoon, over five times more in rice, and three times more in Nabisco Ginger Snaps cookies.
Consumers in the tea aisles of major grocery chains are none the wiser about lead in tea — none of the companies that settled with Leeman has printed a Proposition 65 warning on its tea packages.
That’s not the case online. Sellers who watched from the sidelines now routinely include Proposition 65 warnings on their orders. Like Plesent, they just don’t want to fight California.
“It would be virtually impossible to test every herb and every product we have for all 800 substances on the California Proposition 65 list,” online seller Tea Haven said. “For this reason, out of an abundance of caution, we have opted to place the Proposition 65 warning on every order we ship to California.”
A package of Chinese black teas The Times ordered from Tea Haven came with a Proposition 65 sticker and a slip of paper warning about “one or more hazardous chemicals.”
There was no mention of lead.
Spreading the fear
Online shopping, Twitter, fast fashion, and Cardi B weren’t around when Proposition 65 was passed.
They collided last May over a Proposition 65 warning on bikinis. California did not come out well on a national stage.
“How can clothes cause cancer?” tweeted Azia Ani of Atlanta above a photo of the neon-green zippered bikini she had purchased from Fashion Nova, the Vernon-based brand made famous by rapper Cardi B. The tiny white tag warned about lead, cadmium, and phthalates.
Some 7,000 retweets later, Ani’s post accumulated a long string of out-of-state comments about Proposition 65 warnings on eyewear, Christmas lights, work boots, sofa cushions and gun parts.
“I’m like 90% certain that a lot of clothes expose you to the same harmful things but California requires you by law to inform the consumer,” said a user from Boston.
“Don’t eat it lol,” wrote another.
“This tag is literally on the McDonald’s drive thru window lmao it’s everywhere,” another user commented.
Ani eventually concluded Fashion Nova was “not getting anymore of my coins.”
Fashion Nova declined to comment about the incident or its reasons for posting the warning.
The apparel industry has been a growing target for lawsuits over lead and phthalates in metallic fibers, faux skins, zippers, clasps, and buttons. Apparel and accessories are the focus of hundreds of Proposition 65 notices annually, a Times review of state data showed.
The Twitter bikini panic shows how deeply Proposition 65’s legal requirements and psychology have penetrated the national market, particularly for companies that peddle their products online.
Some sellers warn every online shopper. Others wait until a customer enters a California ZIP Code. Right-wing talk show host Alex Jones, whose Infowars Life dietary supplements were tagged with a $135,000 settlement in 2018 over lead content, warns only Californians on its website, but warns everyone on Amazon, which holds its independent sellers responsible for Proposition 65 compliance.
Online reaction to warnings support what Vanderbilt University economist Kip Viscusi predicted at the law’s genesis. His tests three decades ago showed consumers overreacted at first, equating the notices with the surgeon general’s warnings on tobacco products.
“The problem is the Proposition 65 warnings pick up a huge range of risk,” Viscusi said. “Very risky products such as chewing tobacco, which was among the early Proposition 65 warnings — that is clearly in a different league than something that poses a 1-in-100,000 lifetime risk of cancer.”
Because fast fashion is generally designed to last for a season, the bikini’s cancer risk could be as low as about 1 in 7 million, by Viscusi’s calculations.
It’s not even clear whether the bikini contains a hazardous chemical — Fashion Nova, like other companies, may have posted it without even testing.
So, buyers of the green bikini can’t know enough to know what risk, if any, it poses.
But Michael Barsa, co- director of the environmental law concentration at Northwestern University Pritzker School of Law, said a consumer doesn’t really have to calculate risk for Proposition 65 to accomplish its aim of making cleaner products. They only have to be afraid to buy it.
“Does this give the consumer enough information to make an informed risk-benefit trade-off? The answer is very clearly no,” said Barsa. “But that would be an impossible world to live in. Can you imagine you go to the supermarket and literally every item you buy you’re having to read through reams of data and exposure analysis? It would be crazy-making.”
Consumer fear “is really just what gets the ball rolling for everybody else to make the right decisions — even if that initial consumer impact is not itself rational,” Barsa said. “If you look at the whole law and what happens with it, there may be a sort of crazy genius to it.”
At least one seller, BJ’s Wholesale Club, a membership discount outlet based in Massachusetts, decided not to bother selling to Californians because of Proposition 65.
“At this time we are not confident that our products are consistently labeled to meet these requirements,” the company said on its website. “As such, the company has opted to temporarily stop selling merchandise to consumers in California. We do not have an ETA on when shipping to California will be turned back on.”
Shipping to California is what pushed Grass Family Hemp out of business. The owner and sole employee, Frank Grass, sold hemp powder to Kenneth Randolph Moore of San Jose in August 2017. Months later, Moore received an ominous Proposition 65 Notice of Violation from the San Jose office of “Safe Products for Californians.”
Like Grass Family Hemp, Safe Products for Californians also is a family operation. It is registered as a for-profit corporation run by Kenneth Moore from the office of his ex-wife, attorney Tanya Moore, according to state records. He has been her only client in more than 100 cases, about half of them against Amazon sellers. The pair have netted her nearly $700,000 in lawyer fees, according to attorney general records.
Grass reached out to the Moores to explain that he was exempt from Proposition 65, which applies only to companies with 10 or more employees. He was a one-man shop operating from his home in Aurora, Colo., selling via Amazon, he said.
“She didn’t care,” Grass said of Tanya Moore. “She just skipped over it like it wasn’t even said.”
A judge didn’t rule on that defense — both parties agreed to mediation, after which Moore requested that the case be dismissed.
Reached by The Times, Tanya Moore declined to talk about the case, her client or where he conducts business, citing attorney-client privilege. (Proposition 65 settlements are public, and are posted to the attorney general’s website.)
“I cannot discuss any specific cases,” Moore said. “I cannot discuss any of our settlements.”
The legal tangle cost Grass $5,000, and his company — he opted to dissolve it. “I’m not going to be selling on Amazon anytime soon,” he said.
And certainly not to California.
Mohan is a former Times staff writer. Staff writer Ryan Menezes contributed to this report.
Source: Los Angeles Times
July 26, 2020
