Twenty-five years ago, California voters overwhelmingly passed an initiative called “The Safe Drinking Water and Toxic Enforcement Act of 1986″ (Health and Safety Code §25249.5). The initiative is commonly known as Proposition 65. This unique law requires businesses with 10 or more employees to provide warnings when they expose people to chemicals known to cause cancer or developmental or reproductive harm. It also prohibits the discharge of these chemicals into sources of drinking water. In part, Prop 65 is a “right to know” law. Unlike many other federal or state laws, it does not directly regulate the use, emission or exposure to any chemical. Instead, it simply requires businesses to inform consumers when they are being exposed to the chemicals, providing essential information that allows people to make informed choices regarding the occupational, environmental or consumer-product exposures they may experience every day.
A SELF-EXECUTING LAW
A unique aspect of the law, which can be very confusing to businesses and their counsel, is the way in which the law was structured to be self-executing. Efforts were made by the authors of the initiative to limit the potential for governmental interference or foot-dragging in the listing of chemicals or enforcement of the statutory mandates. Rather than establish a traditional regulatory program, Prop 65 requires the governor to publish a list of chemicals known to cause cancer or developmental or reproductive harm. Twelve months later, businesses are automatically prohibited from knowingly and intentionally causing an exposure to those chemicals without an adequate warning.
THE LEAD AGENCY AND ITS REGULATORY FUNCTIONS
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