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Overview
- OEHHA's Fact Sheet omits material facts and misstates the public benefit.
- Prop 65 listings based solely on animal data do not support warnings for humans.
- Prop 65 safe harbor warnings are misleading because they cause consumers to perceive that the products cause cancer and reproductive toxicity.
- Prop 65 imposes high costs and increased litigation risk on businesses, which may not be offset by cleaner products or environment, given that other state and federal laws regulate these risks.
OEHHA's Fact Sheet Omits Material Facts And Misstates The Public Benefit
The agency that promulgates the regulations governing Proposition 65 — the Office of Environmental Health Hazard Assessment (OEHHA) — provides to the public a "Fact Sheet" entitled "Toxic Chemicals, Proposition 65 Warnings, and Your Health: The Big Picture," which is meant to educate on how Prop 65 warnings have made people safer and inform the audience how to reduce exposure to toxic chemicals. Clearly, it is well-intentioned, but OEHHA omitted crucial details that provide a more complete and realistic picture of the effects this law has had on consumers and companies, large and small, as it approaches 40 years in effect.
For example, OEHHA broadly advertises that Prop 65 has made the environment safer, but left out of the discussion is that many Prop 65 cases really are about money, with the environment and public health as an afterthought. Prop 65 settlements and verdicts impose a heavy financial toll to such an extent that some companies have gone out of business and others have stopped selling in California, even when the products are safe and do not cause an exposure that requires a warning. Many companies provide warnings on their products purely as a prophylactic measure solely to mitigate the risk of litigation. The final result is that Californians are so inundated with Prop 65 warnings that they no longer have impact.
Fact: Prop 65 Listings Based Soley on Animal Data Do Not Support Warnings For Humans
The inclusion of several chemicals on the Prop 65 list are the product of flawed or limited science. For example, OEHHA's Fact Sheet propagates the misleading assertion that "frying potatoes and other starchy foods or roasting asparagus creates acrylamide in the food. Proposition 65 has played a major role in prompting businesses to find ways to reduce acrylamide in many foods." OEHHA's Fact Sheet did not disclose the crucial fact that the acrylamide listing for food was based solely on animal studies. Although Prop 65 authorizes listing chemicals based solely on animal data, the evidence of carcinogenicity in humans was lacking epidemiological support.
Indeed, the absence of scientific proof of carcinogenicity in humans led a federal court, in 2025, to rule that applying Prop 65 to acrylamide in food violated the First Amendment because requiring businesses to warn that acrylamide in food might cause cancer was compelled speech spreading a lie among the public and misleading them.1Federal courts, including the Ninth Circuit, repeatedly have held that the First Amendment prohibits California from forcing companies to put statements like Prop 65 warnings on their products when those statements are controversial and scientifically unsettled. In other words, the Fact Sheet, which has not been updated since the federal court's injunction, continues to celebrate an unconstitutional overreach by the State that misled the public and led businesses to pay out hundreds of settlements.
A similar result occurred with titanium dioxide in cosmetics. Just like acrylamide, titanium dioxide was listed under Prop 65 based on animal studies notwithstanding the lack of evidence in humans. A federal court held that the subsequent warning requirement misleads the public, making consumers think certain products could cause cancer despite the lack of supporting scientific evidence.2
The lesson from the science, applied by the federal courts, is that a chemical that causes cancer in an animal will not necessarily have the same effect on humans because humans are more biologically complex. In sum, although animal studies can justify the inclusion of a chemical on the Prop 65 list, the subsequent warning requirements may be barred by the Constitution where the listing is based solely on animal studies without a showing that the chemical has a similar effect on humans.
Fact: Prop 65 Safe Harbor Warnings are Misleading Because The Products Are Perceived By Consumers As Causing Cancer And Reproductive Toxicity.
In both the titanium dioxide and acrylamide Prop 65 cases, federal courts criticized California for telling the public that these chemicals cause cancer in humans when the State's only evidence was animal studies that did not necessarily translate to humans. The Prop 65 warning labels, therefore, would cause a consumer to conclude that a product contains a chemical that causes cancer, and if they buy and use the product, they will develop cancer. Federal courts are now starting to throw out warning requirements when the science does not back up the consumer's understanding.
Prop 65 is meant to communicate known risks, not mere hazards. A "risk" is the likelihood that cancer will occur at a real-world level of exposure, whereas a "hazard" indicates that, at some theoretical level of exposure, the chemical is capable of causing cancer.3 The boilerplate warnings for titanium dioxide and acrylamide, even with modifications OEHHA made to try to satisfy the courts, did not differentiate "risks" from "hazards", leading consumers to avoid products out of fear, even when there is no good reason to do so.
Even when the State's science is more solid than in the acrylamide and titanium dioxide cases, the statute itself can be read to require a Prop 65 cancer warning when a chemical is merely present at a detectible level rather than at a level of exposure that could cause harm. As such, a reasonable consumer reading the Prop 65 safe harbor warning might incorrectly conclude that a product will cause cancer, when in reality, the minute amount of the chemical is essentially harmless.
Fact: Prop 65 Has Imposed High Costs And Increased Litigation Risk On Businesses, Which Might Not Be Offset By Cleaner Products Or Environment, Unlike Other State And Federal Laws.
OEHHA's Fact Sheet obscures what Prop 65 has accomplished by discussing it in isolation, without a view of the broader regulatory scheme in California. The reality is that Prop 65 is only one small California-specific part of overlapping and detailed environmental protection laws such as the Clean Water Act, the Clean Air Act, RCRA, CERCLA, the Food, Drug, and Cosmetic Act, and California equivalents/supplements, like the Hazardous Waste Control Law, and the Sherman Act. These laws and their comprehensive regulatory schemes, often directly enforced by regulators, generally are focused on real, known dangers to people or the environment. The penalties for violating these laws also can be far more substantial and threatening than Prop 65, prompting businesses to focus their compliance efforts.
Although the Fact Sheet trumpets Prop 65's accomplishments, it is not clear that Prop 65 itself actually led to "safer" foods beyond what the FDA's regulations have accomplished. Similarly, one must question if Prop 65 led to cleaner and more protected drinking water in California when much has been accomplished by way of the EPA and the Safe Drinking Water Act.
Traditionally, the expense incurred by businesses to comply with environmental standards benefits the public. Under Prop 65 however, businesses face increased expenses and litigation risks, while the benefits flow primarily to private enforcers, not the public. In other words, the financial burden of Prop 65 does not necessarily result in a public benefit in the form of truly safer products and a cleaner environment, while the costs of litigation are passed to the consumer through increased prices.
A More Complete Set Of Facts
The OEHHA Fact Sheet claims that Prop 65 has motivated "some businesses to take steps to eliminate toxic chemicals in their products" but companies often substitute the listed chemical for others that are not on the Prop 65 list. However, unlisted chemicals are not necessarily safer and may not be flagged because they have not been studied and safety is unknown. For example, companies once used receipt paper containing Bisphenol-A until that chemical became the target of Prop 65 enforcement. It was followed by a collective switch to Bisphenol-S, until OEHHA listed it and those same companies are now being subjected to Prop 65 lawsuits. The take away is that companies may switch to a new chemical in a good faith effort to comply with Prop 65 only to discover that the alternative has a much higher degree of reproductive toxicity or carcinogenicity than the original listed ingredient the company was trying to avoid.
Prop 65 has had many unintended consequences. A more fulsome and objective assessment of Prop 65 would disclose that it has led to expensive, unscientific overregulation that harms businesses and creates confusion, neither of which benefits nor protects Californians.
Footnotes
1. Cal. Chamber of Com. v. Bonta, 781 F.Supp.3d 1071 (E.D. Cal. 2025).
2. Personal Care Products Council v. Bonta, 799 F.Supp.3d 1075 (E.D. Cal. 2025).
3. See id. at 1090.
Co-authored by Dina Adham, Jack Wallen, Mike Easter
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