The principle that “the dose makes the poison”–in other words, that almost any substance can be toxic at very high levels–has been lost on Californians. That is why a two-decade-old ballot proposition, commonly known as “Prop 65,” requires signs in most commercial establishments–from supermarkets to pet stores to hotel lobbies–proclaiming that consumers may be exposed to chemicals that can cause cancer or birth defects.
Not that in the overwhelming majority of cases there’s any greater risk than in, say, household cleaning products, but the law requires a warning about any product that contains even tiny amounts of a chemical that, at high doses, can cause cancer in lab animals.
Prop 65 is a paragon of bad government, but help may be on the way from an unlikely quarter: the U.S. Congress. The National Uniformity for Food Act, previously passed in the House of Representatives by a wide bipartisan margin and introduced in the Senate on May 25, would mandate the kind of uniform national food-safety labeling that now provides nutrition and allergy information. This progressive measure would ensure that consistent food-safety information is available nationwide and is driven by science instead of by nutrition fads, junk science, food scares, or political pressure from special-interest groups. It would relegate Prop 65 to the trash heap of regulatory history.
However, illustrating once again that in politics no good deed goes unpunished, California’s three most senior politicians–Democratic Sens. Barbara Boxer and Diane Feinstein, and Republican Gov. Arnold Schwarzenegger–are opposed to this legislative rescue.
Their opposition is inexplicable. Prop 65 requires businesses to provide warnings on all consumer products that might expose state residents to traces of chemicals presumed to cause cancer or birth defects. The law lists more than 750 “dangerous” chemicals that, at huge doses, might cause cancer in lab rats. Human health or economic benefits are deemed irrelevant, as is research that indicates that a chemical in fact poses no human health risk.
Prop 65 simply ignores the reality that we live in a sea of chemicals–toxins, radioactive elements, and the like, the vast majority of them naturally occurring. And, as observed by eminent UC Berkeley toxicologists Bruce Ames and Lois Gold, “no human diet can be free of naturally occurring chemicals that are rodent carcinogens.”
The unscientific underpinnings of Prop 65–the legal equivalent of the boy who cried wolf–have led to all sorts of absurdities. Cocoa beans grown in volcanic soils contain trace amounts of naturally occurring cadmium. So, exploiting a “bounty hunter” provision in the law that encourages individuals and groups (and trial attorneys) to sue in the “public interest,” a radical NGO has brought legal action against chocolate makers.
A chemical called acrylamide occurs naturally in a range of foods from bread to prunes because it is formed when foods are cooked, so California Attorney General (and governor wannabe) Bill Lockyer threatened to sue potato-chip and French-fry manufacturers–even though the FDA and the World Health Organization say there’s no danger.
For much of the last two years, the publicity-hungry Lockyer litigated to require warning labels on canned tuna because trace amounts of mercury put companies selling it in violation of Prop 65. Never mind that tuna is high in protein, low in fat, provides essential nutrients, and is recommended by nutritionists as part of a balanced diet. Fortunately, California Superior Court Judge Robert Dondero recently rejected a requirement for tuna warnings, noting that the FDA has a national consumer-education campaign designed to inform consumers at higher risk without scaring others away from an affordable and nutritious source of protein.
Chocolate, acrylamide, and tuna are just the tip of the iceberg when it comes to the abusive provisions of Prop 65. NGOs have harassed the makers of products ranging from toothpaste to tattoo inks. Small businesses, especially, feel the financial pinch of this legalized extortion when legal fees and possible fines for Prop 65 violations threaten to exceed sales revenues.
Not only is Prop 65 detrimental to commerce, and not only does it fail to provide any benefit to public health, but let us remember who ultimately foots the bill: every American consumer who buys a product or service from a Prop 65-affected company.
If we Californians can’t get rid of unscientific, ineffective, costly regulation on our own, our politicians should just stand aside and let Congress do it. The National Uniformity for Food Act will be good for California, and for the nation.
–Henry I. Miller is a physician and fellow at Stanford University’s Hoover Institution. From 1979 to 1994, he was an official at the Food & Drug Administration. His most recent book, The Frankenfood Myth, was selected by Barron’s one of the 25 Best Books of 2004.