In California, the Safe Drinking Water and Toxic Enforcement Act of 1986 (known as Proposition 65) established strict standards for over 800 chemicals (click here for the full list), compounds and metals, some of which are found in certain consumer products and foods, including our own. Through diligent testing, we have determined that certain products of ours contain lead or cadmium. California’s Proposition 65 therefore requires that these products be labeled to indicate the presence of these heavy metals, which are known to cause cancer or reproductive harm.
Currently, the U.S. Food and Drug Administration (FDA) and U.S. Department of Agriculture (USDA) offer very little in the way of standards for heavy metals in foods, other than specific products such as mercury in tuna, for example. The European Union (EU) similarly does not set hard limits except for certain categories of foods and specific chemicals.
Even more inexplicable, and the most important factor concerning superfoods, is that there is no distinction drawn between substances naturally found in soil and crops, and the chemicals found in something like airplane exhaust fumes or industrial paint.
According to Prop 65, consuming organic Cacao Powder poses the same health risks as ingesting or inhaling flakes of lead paint because they both contain a certain amount of the same chemical.
This results in foods which naturally and beneficially contain heavy metal minerals being treated exactly the same as a mined, concentrated, industrialized product like batteries or paint. Of course it is dangerous and unhealthy to consume the toxic chemicals found in batteries and paint, but there is a HUGE difference when it comes to heavy metal minerals that are organically bound to plants.
Prop 65 does not offer a solution. It doesn’t limit the amount of “cancer-causing” chemicals that can be put in a product, just that the warning be carried if levels are exceeded. It also doesn’t mandate disclosing which chemicals are in the product. On the list of over 800 carcinogens, some have even been declared safe by the FDA and other government bodies. In regards to food, Prop 65 makes no distinction between natural or completely artificial products, and as previously noted, there is no distinction between naturally occurring or man-made chemicals. So what exactly are Californians being saved from? How are you supposed to know?
Prop 65 is hurting lawful natural food companies that are actually in compliance. The leading reason behind the hundreds of lawsuits is that Prop 65 has a “citizen-suit” provision— meant to pay for itself and not require funding from legislature, this has allowed self-seeking lawyers and individuals to bring suits by claiming it’s “in the public interest,” without needing proof of violation, and putting the burden of truth on the manufacturer. These law firms don’t even have to prove that they have been injured in any way by whatever violation of the Prop 65 they are claiming. The Attorney General of the State of California even had to step in already to stop a case being brought forth by a “citizen suit."
These suits are very expensive and devastating to many small businesses that produce safe, law-abiding products. If a company can afford it, they nearly always settle out of court, with a large percentage of the settlement money going to the law firm, some going to the individual who brought the case and the balance going to the state.
In 2013, businesses paid $17.4 million in Proposition 65 settlement payments. Of that total, a whopping 73% ($12.7 million) went to attorney’s fees. In 2012, businesses paid roughly $22.5 million in settlements.
Between 2000 and 2010, businesses paid more than $142 million to Proposition 65 cases—a figure that does not include the amount paid from cases that actually went to trial. Almost $90 million or 68% of that settlement money went to attorney’s fees. Of all the suits filed claiming a violation of Prop 65, and with all the money involved to settle them, only 15% were suits brought by the state of California. This means that the vast majority were simply profit-seeking attorneys.
The unfortunate truth is this law is intentionally difficult to change. Because it was passed as a ballot initiative, two-thirds of lawmakers in both chambers of the legislature must pass a bill that “furthers the purpose of Proposition 65”— as in modifying the current requirements, not changing it altogether. Any more substantial reforms would have to be approved by voters, which is notoriously difficult to achieve.
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