Long the subject of controversy since it became law 40 years ago, the California Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly known as Proposition 65, has become of staple of California’s legal, and consumer products, landscape. What was originally intended to ensure that unsafe chemicals were not present in drinking water, and to provide consumers with information to allow for informed purchasing decisions, has over the years been transformed into something very different. Instead, the ubiquitous Proposition 65 warning label, seen in stores, gas stations, parking garages and on tool sets, for example, is virtually ignored by many California consumers. Although the law has succeeded in reducing the amount of some harmful chemicals in certain consumer products, such as lead, in most cases there has been no meaningful benefit. Instead, it has generated a cottage industry of citizen plaintiffs and attorneys, some of whom have been enriched by manipulating the statute to their advantage.

For example, in one case that is currently being tried in Los Angeles Superior Court, Council for Education and Research on Toxics (CERT) v. Starbucks, CERT alleges that coffee retailers and roasters need to provide a Proposition 65 warning for exposure to acrylamide when drinking coffee. Acrylamide is widespread and has been in food since the advent of fire, present in trace amounts in roasted and baked products, such as coffee, bread, potatoes, cereal, chips and the like, simply because when these foods are prepared, the baking process results in a chemical reaction that produces low levels of acrylamide. Although in industrial settings acrylamide has been found at high levels that could affect workers’ health, levels in consumer food products are negligible.

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