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California’s Proposition 65 and the Danger of Over-regulation

During the week of March 26, 2018, California announced that coffee shops are required to post warnings that the coffee customers are drinking may cause cancer.1 Such warnings are common in California thanks to Proposition 65 (“Prop 65”)—a thirty-year old California law mandating businesses to post cancer warnings if they sell products that contain substances appearing on California’s carcinogenic list.2. In the case of coffee, the harm is less than minute. When roasted, coffee beans emit acrylamide—a known carcinogenic toxin—but the amount emitted from coffee has never been found to be significant enough to raise concerns.3 To be at risk from pernicious acrylamide, one must be exposed to high levels, which could never happen even if drinking multiple cups of coffee.

Nevertheless, Prop 65 sets out a high bar to avoid its reach. In order for businesses to avoid putting the label on their products, they have to prove that the product conclusively does not pose any health risks related to the toxin.4 Thus, even in the smallest amounts, if a product contains a substance on the state’s carcinogenic list, the warning label must attach. The warning mandate acts in spite of the many business costs associated with Prop 65.

Prop 65, although it has a public health purpose, poses a high burden for businesses. The burden comes in the costs associated with posting the warning on their products. The long list of products already associated with a label includes tuna, potatoes, and even pumpkin puree.5 Now, coffee shops are mandated to post a warning label within their stores. Failing to post the warning results in a fine of up to $2,500 per day for a violation.6 For small, individually owned coffee shops, this fine is something they will surely try to avoid.

Another significant cost Prop 65 imposes is litigation, especially when the plaintiff’s lawyers seek to collect fees. Between 2000 and 2016, businesses paid more than $284.7 million to settle Prop 65 cases—a figure that does not include the amount paid from cases that actually went to trial.7 However, settlements still bring a significant cost. In 2016 alone, businesses paid $30.1 million in settlements, of which 72% went to attorney fees.8 Understandably, attorneys see Prop 65 as a viable business opportunity, but targeting businesses that are likely to opt for settling unfairly takes money from those businesses and eradicates the purpose of Prop 65. Since the burden on defendants is so high, businesses are more likely to settle than even attempt to win in court.

Prop 65 was enacted as a public health statute. However, its recent history shows that those goals are not being fulfilled, and instead attorneys are the ones benefitting from it. Additionally, if the warnings are everywhere, will reasonable people even heed them? This is a growing criticism of Prop 65 as courts determine that more products and businesses must display warning labels.9 As Greenberg Traurig attorney Lisa Halko notes, “I don’t believe Proposition 65 has been good for California. It exaggerates a particular class of long-term theoretical risks related to cancer and reproductive health and makes it harder for people to make reasonable choices.”10


  1. Omri Ben-Shahar, Carcinogenic Laws: Coffee Shop Cancer Warnings Do More Harm Than Good, Forbes (Mar. 31, 2018), https://www.forbes.com/sites/omribenshahar/2018/03/31/carcinogenic-laws-coffee-shop-cancer-warnings-do-more-harm-than-good/#4b1a74875062

  2. Id. 

  3. Id

  4. See Melissa Jones, Defending a California Proposition 65 Matter by Relying on the Safe Harbor Defense, Retail Value Chain Fed’n (May 12, 2015), http://www.rvcf.com/blogpost/1149227/216996/Defending-a-California-Proposition-65-Matter-by-Relying-on-the-Safe-Harbor-Defense

  5. Sarah Chodosh, California Needs to Stop Saying Everything is Cancer, Popular Sci. (Apr. 4, 2018), https://www.popsci.com/california-coffee-cancer-warning

  6. Frequently Asked Question, State of Cal. Dep’t of Justice, https://oag.ca.gov/prop65/faqs-view-all

  7. Lawsuit Abuse, Prop 65 Scam, http://prop65scam.com/lawsuit-abuse/

  8. Id. 

  9. Brendan Borell, Are Proposition 65 Warnings Healthful or Hurtful?, L.A. Times (Nov. 2, 2009), http://www.latimes.com/health/la-he-pro-con2-2009nov02-story.html

  10. Id