Comment-21567-Joe Wolff

I am opposed to the proposal to amend the short-form warning requirements.
I disagree with the reason statement, “Not requiring a specific chemical or chemicals to be included in the short-form warning has caused its over-use.” The over-use of warnings has been caused primarily by the ability for “bounty hunter” attorneys to file lawsuits against any product manufacturers and sellers. Any product without a warning is an invitation for a frivolous lawsuit. Until such a time that the law is changed such that bounty hunters can no longer take advantage of the situation by filing countless lawsuits with the goal of receiving payouts from settlements, legal counsel to businesses will continue to advise that it is less costly to provide warnings prophylactically with their products (even when there is no meaningful risk of exposure) than to pay attorneys to deal with litigation. Additionally, I would venture that most companies won’t sell products that they know aren’t “safe,” however product safety does not have a direct bearing on whether a Proposition 65 chemical exposure warning is required.
What evidence does OEHHA have to support the following statements? “OEHHA anticipates that if a business must identify a chemical exposure, businesses will be less likely to use the warning prophylactically and more likely to warn only when the Act requires it.” “OEHHA anticipates that, when pressed to identify a chemical exposure, some businesses will determine that no warning is required for their products, resulting in fewer instances of over-warning and making those warnings that are given more meaningful.” “OEHHA anticipates that some businesses may stop the prophylactic practice of over-warning as a litigation-avoidance strategy if they must warn customers of a specific chemical exposure that can occur through use of their product.” I believe this is a fallacy. I believe that businesses are more likely to mention a chemical in the warning – a chemical with no listed NSRL or MADL, even if the chemical is only potentially found in trace amounts in the product – than to remove the warning and face the subsequent possibility of litigation.
I understand that most consumers (66%) believe that a warning with specific chemical names is more helpful than a warning that generally refers to chemicals. However, if a product could expose a consumer to a harmful chemical, why does it matter to the average consumer what the specific chemical is? And how does naming one chemical to which a consumer could be exposed, even in minute quantities, truly help a consumer make an informed decision about the potential exposure? I don’t expect that anyone without a degree in chemistry or toxicology would easily comprehend any difference between exposure to aldrin versus vinyl trichloride, let alone make an educated decision about the risks of exposure to that chemical from a given product. As such, I believe that naming a specific chemical on a warning is not likely to have a meaningful impact on consumer behavior or comprehension.
I agree with OEHHA that the exposure warnings are currently diluted and ineffective. However, in my opinion, adding requirements for short-form warning labels to be more specific is not an appropriate method of improving the law when there are other glaring issues that must be addressed first. Amending the law in a way that would prevent “bounty hunters” from filing lawsuits against businesses without showing significant proof of bodily harm could allow businesses to feel comfortable selling products without an unnecessary, prophylactic warning. Changing "exposure" to something more defined and quantitative would allow businesses to evaluate their products in a manner consistent with the intent of the law and provide scientifically acceptable data to refute any claims of a violation. Adding NSRLs and MADLs to every chemical would allow businesses to determine if trace amounts of a chemical pose a meaningful risk. Currently, when there is no NSRL/MADL for a given chemical, exposure to even one atom/molecule of that chemical from an otherwise safe product is technically enough to require a warning.
The other proposals appear acceptable to me with one small exception. In the proposed short-form warning, I do not perceive value in adding the word “See” before “www.P65Warnings.ca.gov.” I recommend deleting the word “See” from the short-form warning statements.