Why Are We Still Talking About California Prop 65?
For readers who have been following us, you have likely seen our posts tracking California’s consumer right to know law, Prop 65, along with its new amendments and significant litigation. You may think, what more is there to write about a law that is only effective in one state?
As it turns out, quite a bit, especially now that Prop 65’s influence seems to have spread to other states. We have written previously about Prop 65’s far-reaching impact on companies, nationwide and internationally, doing business in California. Now, New York has proposed and Washington State has passed laws similar to Prop 65. These other laws could also have far-reaching effects for companies.
Washington’s state legislature passed Senate Bill 5135 in April 2019, called the “Pollution Prevention for Our Future Act,” which gives state agencies the “authority to ban chemicals and require disclosure of harmful chemicals in a wide range of products from carpets and personal care products to electronics and building materials.” Signed into law on May 8, 2019 by Governor Jay Inslee, the new legislation has been dubbed the nation’s strongest policy regarding toxic chemical products. Washington’s law goes a step farther than Prop 65 because it gives agencies the authority to ban chemicals in addition to requiring disclosure. While the state agencies in Washington have not yet developed the vast database that California’s Office of Environmental Health Hazard Assessment (OEHHA) has with over 900 listed chemicals, the Washington law prioritizes five chemical classes for action: (1) PFAS, (2) organohalogen flame retardants, (3) phthalates, (4) alkylphenol ethoxylates and bisphenols, and (5) PCBs. In addition, the law focuses on protecting sensitive populations, such as pregnant women and children, but also listed species including orcas and the Chinook salmon. While detailed regulations under the Washington law have not yet been promulgated, the disclosure portion of the law may require labeling products with these priority chemicals, like California’s Prop 65.
Prop 65’s influence seems to have reached the east coast, too. In January 2019, New Yorks’s Governor Andrew Cuomo proposed the “Consumer Right to Know Act” as part of the executive budget legislation. The proposal sought to expand the state’s existing cleaning product ingredient disclosure law (6 NYCRR Part 659) to develop labeling requirements for personal care products with known carcinogens and other chemicals. Governor Cuomo’s press release indicated that agencies, including the New York Department of Environmental Conservation (NYSDEC), would develop “a list of more than 1,000 carcinogens and other chemicals that will trigger labeling” and “increase transparency” for consumers. As proposed, the law sounds similar to California’s Prop 65, but one key difference is that rather than the state Attorney General being charged with enforcement, the state agencies would have enforcement responsibilities. Currently, the status of the proposal is stagnant. However, while state legislators subsequently removed the Governor’s proposal from the budget with lobbyists calling it “dangerously vague and ultimately unworkable,” there appears to be strong support in New York to pass a consumer product program similar to what the governor proposed, just with more detail.
In fact, in May 2019, legislators proposed amendments to New York’s main consumer protection statute, Gen. Bus. Law § 349, referred to as Senate Bill S2407C. Most of the changes appear to make the law more plaintiff-friendly (i.e., guaranteed statutory damages, expands category of plaintiffs with standing to sue, etc.). These amendments closely mirror some of the provisions under California’s Prop 65 that spawned its “cottage industry” of citizen-lawyer team bounty-hunters. While the labeling proposals Governor Cuomo set out in January 2019 have yet to be included, creating requirements similar to Prop 65 may not be too far off for New York.
Even though California’s Prop 65 has already affected most national and international companies doing business in California, its impact has not stopped there. With more states passing laws similar to Prop 65, especially in key markets like New York, it is likely that companies doing business in any state may need to comply with some sort of labeling law for consumers in the future.