Yes, there are a lot of problems with Prop 65, but the podcast also highlights the benefits. Slapping a Prop 65 warning on foodstuffs in particular significantly decreases sales, so it's not something you just do merely to avoid extortionate lawsuits. It incentives testing beforehand, and if you find contaminants to then reformulate. Notwithstanding the seeming ubiquity of Prop 65 warning labels in California, the salient effects are significant and largely hidden--you don't notice all the products that don't have the label, and don't because they were reformulated to avoid the label. Prop 65 was one of the most significant drivers in the US of the removal of lead and other contaminants in products. The author of the bill admits the unintended consequences have been significant, especially harassment lawsuits, but he also argues there aren't really good alternatives that could have achieved what Prop 65 has with a better cost/benefit ratio.
Having an army of private lawyers vigorously prowling for contaminants in products is a pillar of Prop 65's success. You couldn't achieve what Prop 65 has with centralized regulation, not without creating tremendous (i.e. costly in time if not money) bureaucratic hurdles to creating and selling products in the market. Prop 65 is a kind of "ask for forgiveness" model, rather than "ask for permission". The former is generally more preferable if you want to preserve market dynamism and profitability, while also minimizing the risk of regulatory capture, and lax, haphazard enforcement. Moreover, you get the escape hatch of just adding a warning label, without having to take your product off the market.
There is a centralized regulatory aspect to Prop 65--the State of California's list of contaminants--subject to typical bureaucratic and lobbying externalities. But on balance Prop 65 seems defensible, however imperfect. After listening to the podcast, which if anything leaned into Prop 65 criticism, I softened my views on Prop 65.
>Having an army of private lawyers vigorously prowling for contaminants in products is a pillar of Prop 65's success. You couldn't achieve what Prop 65 has with centralized regulation, not without creating tremendous (i.e. costly in time if not money) bureaucratic hurdles to creating and selling products in the market.
What makes cancer and reproductive risks unique such that labelling for them cannot be enforced by the government, and needs to be done by private enforcers motivated by profit? Why could the same type of law not simply be enforced, in a largely similar way, by a government agency?
I would generally agree that Prop 65 has had benefits, and that such labelling, in principle, could be a good thing (even if I'd really prefer if there were some requirement to actually give at least some explanation when putting a label). But the private enforcement has never made sense to me, unless one takes the view that the state actually opposes labelling and can't be trusted to enforce it.
I realize this is the first-half of a compound question, but those jump out to me as cases where there can be years between harmful exposure and someone noticing the damage.
> What makes cancer and reproductive risks unique such that labelling for them cannot be enforced by the government, and needs to be done by private enforcers motivated by profit?
It's not unique. The ADA and the NVRA are two other big laws that include private rights of action, eg
Great read, thanks for the info. These things really are complex and worth withholding judgment until we really have a grasp of the specifics. This may have changed my mind about it.
One thing I wonder about with various regs is whether the optics are ever fully factored into the analysis. This seems to be a blind spot in a lot of regulatory behavior that affects consumers, GDPR being another obvious example. To consumers, these laws are examples of regulatory cluelessness, being so broadly applied as to be meaningless, and ultimately undermining the moral authority of the act of regulation. Who doesn't look at a Prop 65 warning and ultimately conclude 'well I guess everything causes cancer'?
Based on your description, Prop 65 did some nice jiu jitsu to navigate real-world constraints and create incentives to get some positive change in, and I imagine the author is proud of having figured out that kind of complex move. But man did it whiff on the optics.
Yes, there are a lot of problems with Prop 65, but the podcast also highlights the benefits. Slapping a Prop 65 warning on foodstuffs in particular significantly decreases sales, so it's not something you just do merely to avoid extortionate lawsuits. It incentives testing beforehand, and if you find contaminants to then reformulate. Notwithstanding the seeming ubiquity of Prop 65 warning labels in California, the salient effects are significant and largely hidden--you don't notice all the products that don't have the label, and don't because they were reformulated to avoid the label. Prop 65 was one of the most significant drivers in the US of the removal of lead and other contaminants in products. The author of the bill admits the unintended consequences have been significant, especially harassment lawsuits, but he also argues there aren't really good alternatives that could have achieved what Prop 65 has with a better cost/benefit ratio.
Having an army of private lawyers vigorously prowling for contaminants in products is a pillar of Prop 65's success. You couldn't achieve what Prop 65 has with centralized regulation, not without creating tremendous (i.e. costly in time if not money) bureaucratic hurdles to creating and selling products in the market. Prop 65 is a kind of "ask for forgiveness" model, rather than "ask for permission". The former is generally more preferable if you want to preserve market dynamism and profitability, while also minimizing the risk of regulatory capture, and lax, haphazard enforcement. Moreover, you get the escape hatch of just adding a warning label, without having to take your product off the market.
There is a centralized regulatory aspect to Prop 65--the State of California's list of contaminants--subject to typical bureaucratic and lobbying externalities. But on balance Prop 65 seems defensible, however imperfect. After listening to the podcast, which if anything leaned into Prop 65 criticism, I softened my views on Prop 65.