Trade groups representing apparel, footwear and travel goods manufacturers say proposed changes to the California Safe Drinking Water and Toxic Enforcement Act of 1986 that were supposed to reduce frivolous “shake-down” lawsuits could have the opposite effect.

In a June 13 letter to the state’s Office of Environmental Health Hazard Assessment (OEHHA), top executives from the American Apparel and Footwear Association, the Travel Goods Association and the Fashion Accessories Shippers Association say they oppose six proposed changes to the law, which is commonly referred to as “Proposition 65.”

Passed in 1986, Proposition 65 requires businesses to provide a clear and reasonable warning before knowingly and intentionally exposing individuals to a list of chemicals that are known to cause cancer, birth defects or other reproductive harm.

In response to complaints that the law has spurred a host of frivolous lawsuits and further undermined California’s competitiveness, Gov. Jerry Brown supported changes to the law. But in a six-page letter, the trade associations argue some of the changes proposed could expose them to more lawsuits and higher compliance costs.


“The undersigned associations believe any proposed reforms to strengthen and restore the intent of Prop 65 must address the crux of the issue that Governor Brown raised in his initial call for reform: abuse by unscrupulous lawyers driven by profit rather than public health,” reads the letter. “Further, proposed reforms should not impose such extraordinary costs with no demonstration of any improvement to public safety. As such, we strongly object to any language in the proposed regulation that would exacerbate the potential for groundless litigation or imposes undue costs on businesses.”


Specifically, the groups oppose replacing existing “safe harbor” language in the law with new language.


“Currently, the safe harbor warnings for consumer products cover all chemicals and exposure scenarios,” reads the letter. “As such, the potential for litigation is only possible when the business fails to warn, and a citizen enforcer alleges that the product or the occupational or environmental setting contains a listed chemical at infinitesimal levels or trace amounts. However, under the draft regulation, the potential for litigation arises not only for failing to warn about one of the twelve specific chemicals listed in the draft, but for other chemicals an enforcer alleges are contained in the product. Likewise, a business’s description of chemical routes of exposure, levels of exposure, and actions a person can take to minimize or eliminate exposure can be challenged by enforcers as allegedly insufficient, resulting in costly litigation.”


The trade groups also oppose changes:

  • Requiring certain products to bear the Globally Harmonized System (GHS) health symbol that denotes the presence of potential health hazards, including carcinogens, mutagenicity and reproductive toxicity, because the pictogram also communicates hazards outside the scope of Prop 65, such as respiratory sensitizer, target organ toxicity, and aspiration toxicity. It is reasonable to assume that consumers who research the elements of the GHS pictogram may assume they are being exposed to all the hazards that the pictogram represents.
  • Requiring that warnings for exposures to acrylamide, arsenic, benzene, cadmium, chlorinated tris, 1,4-dioxine, formaldehyde, lead, mercury, phthalates, tobacco smoke, or toluene specifically name those chemicals in the warning.

The AAFA has posted a PDF of the full Prop 65 letter online.