Firms Uneasy as Toxics Warning Law Draws Near

SACRAMENTO —  Beginning next month, shoppers in California are likely to see signs posted in supermarkets warning that the products they buy may contain chemicals that cause cancer or birth defects.

At some gas stations, motorists can expect to see signs saying that exposure to gasoline and its vapors can cause cancer or reproductive harm. At oil refineries, chemical plants, electronics firms and factories, posters are likely to go up advising neighbors that emissions into the air could pose similar dangers.

First Visible Results

Such warnings to the public would be among the first visible results of Proposition 65, the anti-toxics initiative overwhelmingly approved by the voters in November, 1986. On Feb. 27, the initiative’s warning requirements will take effect for the first time for 29 chemicals and other substances, affecting a broad array of businesses and industries throughout the state.

At this point, however, business leaders say many companies are confused and uncertain about how to follow Proposition 65.

Under the measure, businesses are prohibited from exposing members of the public to chemicals that are known to cause cancer or birth defects without first providing a “clear and reasonable warning.” Businesses are exempt from the warning requirement if they can show that the exposure does not pose a “significant risk.” What poses a significant risk remains the biggest question.

The state is still drafting final regulations that would specify when warnings will be required and what kinds of warnings will be acceptable. These will be issued as emergency regulations before Feb. 27, state officials said.

“Businesses are in sheer panic,” said John Hunter, a lobbyist for the California Manufacturers Assn. “Nobody has any real firm idea of what to do.”

Chemical manufacturers, high technology companies, newspapers, hospitals, building owners and hundreds of other businesses and manufacturers are debating whether to provide warnings and, if so, what form they should take. Initially, Proposition 65 may prompt a flood of unnecessary warnings from businesses seeking to make certain that they are not forced to pay large penalties for violating the measure. At the same time, some companies, out of ignorance or defiance, may disregard the initiative altogether.

“I expect early waves of overwarning and underwarning as people get used to the law,” said David Roe, a principal author of Proposition 65. “But I expect that after a short shakeout period, we’ll be down to only the real situations that need warnings.”

Depending on the final content of the state’s regulations, spokesmen for the grocery manufacturers and oil companies said, they could alter their plans for issuing warnings.

Warning Programs

The two industries are planning independent warning programs that would include signs, newspaper advertising campaigns and toll-free telephone numbers to give members of the public detailed information about specific chemicals.

In supermarkets, the signs would be targeted primarily at non-food items. But the signs themselves would not make that clear, instead offering a generalized warning that could be interpreted as applying to any item in the store, said a spokesman for the Grocery Manufacturers Assn.

Of the 29 chemicals and substances that will be affected by the Feb. 27 deadline, seven appear to be of the most concern to California businesses: benzene, arsenic, asbestos, lead, vinyl chloride, chromium and ethylene oxide. The remainder of the 29 are either used on a limited basis or have been banned.

However, those seven are so commonplace that nearly every major industry in the state faces the question of whether they should provide warnings under Proposition 65 for at least one substance.

Benzene, for example, is a component of gasoline, oil, solvents and other petroleum-based products. It occurs naturally at low levels in many kinds of food. And it is present in the air throughout the state, primarily because it is emitted in motor vehicle exhaust.

Asbestos Widely Used

Asbestos, widely used as a fireproofing material between World War II and the late 1970s, is present in an estimated 60% of commercial buildings in the state, according to the state Assembly Office of Research. Proposition 65 could change the nature of the ongoing debate over asbestos by requiring building owners to warn occupants in cases where asbestos fibers in the air present a significant health risk.

Evidence that asbestos, benzene and the other 27 chemicals cause cancer or birth defects is based primarily on studies of exposure in the workplace, in prescription drugs or in other situations where levels are significantly higher than those normally encountered in everyday living. The question of what levels of exposure pose risks to humans is usually answered with evidence from tests on laboratory animals.

The warning requirements of the new law pose a difficult dilemma for many businesses. Companies are naturally reluctant to risk scaring customers away by warning them that a product contains a cancer-causing chemical.

However, failure to provide a warning when required could subject a company to a penalty of up to $2,500 a day for each chemical exposure. Fines could add up to nearly $1 million over a one-year period for the exposure of just one individual to significant levels of a listed chemical.

Furthermore, the initiative includes a provision designed to create citizen enforcement of the measure by allowing any member of the public who brings a complaint under Proposition 65 to collect 25% of whatever penalties are assessed. Businesses leaders call this the “bounty hunter” provision.

Need to Be Responsive

“Business and industry are real cognizant of the fact that they have to be responsive or find themselves in court,” said John Jervis, spokesman for a business coalition that calls itself the Environmental Working Group. “They are going to take strong action to protect the consuming public and the public that lives around them.”

Until recent months, however, most industry leaders have focused their attention on lobbying the Gov. George Deukmejian Administration in the hope of winning regulations that will lessen the burden of the initiative.

Business groups that campaigned against Proposition 65 in 1986, claiming that the measure was “full of exemptions,” have been doing their best to obtain as many exemptions as possible. They have met frequently with state officials and submitted hundreds of pages of their own suggested regulations.

But Thomas E. Warriner, undersecretary of Health and Welfare, cautioned that the rules being drafted by the state are unlikely to entirely satisfy either the corporate interests seeking relief or the environmentalist supporters of the initiative.

“We’re dealing with some very difficult issues,” said Warriner, who is heading the Deukmejian Administration’s efforts to implement Proposition 65. “I don’t expect anyone on any side of the issue to be totally pleased with what comes out.”

State Has Broad Latitude

The state is not required under Proposition 65 to draw up even a single regulation. The responsibility for implementing the initiative is placed directly on businesses. But business leaders have clamored for state regulations that would outline a course of action that would be legally defensible in the courts.

Many elements of the state’s proposed regulations have already been made public in draft versions and at public hearings. One proposed rule would grant an exemption from warnings for those chemicals that occur naturally in foods and are not added through human intervention. Substances affected by this regulation would include benzene and arsenic, which are found in trace amounts in many foods.

In addition, Warriner said, the state is attempting to set levels of what would be considered unsafe exposures for each chemical on the list. These standards would give a clear definition of what constitutes a “significant risk” for each substance--definitions that could be crucial for many industries.

Another regulation would temporarily adopt the standards of the federal Food and Drug Administration for food, drugs, cosmetics and medical devices. However, the state would also begin investigating 50 chemicals that are in widespread use to determine if they are at unsafe levels in any of these products.

Samples of Warnings

The state also is preparing a regulation that would set forth the kinds of warnings that would be acceptable under different circumstances, including labels on products, warnings on cash register receipts, signs, mailed notices and newspaper ads.

A draft version of the rule recommends a number of alternative messages, such as, “WARNING: This product contains a chemical known to the State of California to cause cancer,” or “WARNING: This product contains a chemical known to the State of California to cause birth defects or other reproductive harm.”

The Feb. 27 deadline will provide only the first taste of what Proposition 65 has in store for California.

The 29 chemicals covered by the deadline are the first of about 175 substances placed on a list of chemicals known to the state to cause cancer or birth defects. The governor is likely to add at least another 50 chemicals in the coming months.

Under the initiative, the warning requirements for a specific substance go into effect one year after a chemical is placed on the list. Eight months later, the initiative bans the discharge of the chemical into potential sources of drinking water--the most far-reaching provision of Proposition 65.

Succession of Deadlines

Over the next two years, new deadlines will arrive periodically for groups of listed chemicals until all of the substances listed by the governor are subject to both the warning and discharge requirements.

Originally, sponsors of the initiative expected that Feb. 27 would be the warning deadline for about 230 chemicals and that by October the bans on discharge into drinking water supplies would take effect.

But Deukmejian, by placing only the group of 29 chemicals on the initial list, has effectively delayed the deadlines for most of the chemicals that will be covered by the initiative.

One purpose of Proposition 65, according to its sponsors, is to give business a strong incentive to protect the public from unnecessary exposure to chemicals that cause cancer or birth defects. Representing a major change in toxic laws, it will shift the burden of proof from the potential victims of exposure onto the companies that make and sell products containing hazardous substances.

After Feb. 27, it will be in industry’s best interest to know what chemicals are in their goods and whether they could cause cancer or birth defects in consumers.

Some businesses, in an effort to comply with the upcoming deadline, are examining their products to see whether carcinogenic chemicals are really necessary and whether they can be removed.

Definitions Needed

“The obvious solution is to get a clear definition of what the safe level is and stay within it,” said Roe, the initiative co-author and an attorney with the Environmental Defense Fund. “The whole point is to get industry to draw the line and say what is and is not a hazardous level.”

In order to avoid fines, many companies are also making sure that employees who are exposed to any of the chemicals on the job are receiving complete warnings and proper safety instructions.

The strategy of warning signs, newspapers ads and toll-free numbers outlined by the grocery manufacturers would provide them, along with farmers and retail stores, protection from Proposition 65 lawsuits. But it may also leave them open to charges of warning--and alarming--the public unnecessarily.

Jeff Nedelman, a spokesman for the Grocery Manufacturers Assn., noted that the average supermarket contains 15,000 different items. “Every one of the 15,000,” he said, “has a detectable level of at least one chemical on the governor’s list.”

However, the organization, which represents the makers of 85% of all food sold in the United States, also contends that all those items are safe, pointing to the fact that they are regulated by the federal Food and Drug Administration.

Most Food Items Exempt

The state’s proposed regulations adopting the Food and Drug Administration standards and exempting naturally occurring substances from the requirements of Proposition 65 would appear to make warning signs unnecessary on most food items.

Nedelman said the warning signs planned for supermarkets would not differentiate among products on the shelves, leaving the impression that the posters could apply to any item. However, he conceded, the warnings are primarily targeted at non-food items.

“We don’t have any time to take chances,” he said. “The citizen suit bounty-hunter provision is a very strong sword to have hanging over your head. If they (consumers) are concerned, they will be able to pick up a toll-free line and obtain specific information.”

Roe contended that the grocery manufacturers are engaged in a form of “brinkmanship” designed to pressure the state for more favorable regulations. “Any warning on food is purely for political purposes,” he charged. Like Roe, state officials are concerned that unnecessary warnings could undermine the message of legitimate warnings on products that are proven to be hazardous.

“We certainly are not interested in having warnings where warnings are not required,” Warriner said. “Excessive warnings would dilute the effect of the required warnings.”

Oil Industry Preparing

The oil industry is preparing a warning program similar to that of the grocery manufacturers, with signs at gas stations and refineries, a toll-free number and a newspaper advertising campaign.

But the oil companies’ primary concern is benzene, which is in virtually all of their products. To a lesser degree, the industry is also worried about the presence of lead, which is in leaded gasoline and is known to cause birth defects.

Several studies have linked benzene exposure in the workplace to leukemia.

Chevron USA Inc., one of the leading opponents of Proposition 65 during the campaign, is now in the forefront of industry plans for implementing the measure. Unsure where the state will set the allowable level for benzene, the company is planning widespread warnings on the theory that any detectable amount of the carcinogen could pose a significant risk to members of the public.

“The key issue is, what is a significant risk?” said Dave Arrieta, who is coordinating Chevron’s plans. In the absence of state regulations, he said, “The potential for chaos is just unbelievable.”

Benzene may also be a problem for some newspapers, since the chemical may be present in some types of ink. Michael Dorais, a lobbyist for the California Newspaper Publishers Assn., said he is attempting to determine whether benzene is in any of the many brands of ink used by newspapers in California.

Newspaper Plan Actions

If so, newspapers will take steps to remove the chemical or provide any warning notices that are necessary, Dorais said but added, “We don’t believe there’s anything in newsprint or ink which poses a health problem for newspaper readers.”

At the Los Angeles Times, Vice President and General Counsel William A. Niese said in an interview that there is no benzene in the ink used in printing The Times.

Hospitals must deal with the question of ethylene oxide, which is released into the air in relatively small amounts after it is used to sterilize surgical equipment. Hospital officials, already under pressure from local governments to reduce ethylene oxide emissions, said that Proposition 65 may require them to warn neighbors who are exposed to the chemical.

For high-technology companies, aerospace firms and other manufacturers, warnings could be required for arsenic, which is used in solvents; chromium, which is used in chrome plating, and vinyl chloride, which is used in making many plastic products.

Hewlett-Packard Co., for example, uses the solvent gallium arsenide, which contains arsenic, in making some products. As a result, the company plans to post Proposition 65 warning signs in workplaces, lobbies and on the outside of some buildings.

“We are doing our best to comply with the warning requirement,” said Mary Anne Easley, a Hewlett-Packard spokeswoman. “We’re not sure what compliance means in terms of warnings, so we have decided to go beyond the extent of what we think is required.”

Seven Troublesome Chemicals

On Feb. 27, the first warning requirements of Proposition 65 will take effect for 29chemicals, including seven that are commonly used in a variety of products and, in somecases, are widespread throughout the environment. The public can be exposed to thesechemicals in a variety of ways, often in small amounts that may not be harmful. Theinitiative requires that the public be warned about exposure to toxic chemicals if anexposure poses a “significant risk”. Under proposed state regulations, Proposition 65 warnings would not be required for chemicals that are naturally occurring in foods. Chemical: Arsenic Potential Exposure: Naturally occurring in small amounts in many foods. Used in wood preservatives, paints and dyes. Also used in some pesticides and as an ingredient in a solvent used in the electronics industry. Effect: Known to cause cancer in humans. Based on studies of exposure in the workplace, from prescription drugs and from drinking water at extremely high levels. Chemical: Asbestos Potential Exposure: Used until the late 1970s as insulation and fireproofing in buildings. It is found in an estimated 60% of commercial buildings and 20% of homes. As of l985, asbestos was used in more than 5,000 products, including brake linings, roofing and flooring. It is also found in drinking water. Effect: Known to cause cancer in humans. Based on studies of asbestos workers, individuals living with asbestos workers, and residents of neighborhoods near asbestos factories. Also shown to cause cancer in laboratory animals. Chemical: Benzene Potential Exposure: One of the most widespread carcinogens, benzene is present in the air throughout the state. It is found in gasoline, oil, solvents, and other petroleum-based products. It occurs naturally in many foods and is found in cigarettes. Motor vehicle exhaust is the most common source of benzene in the air. Effect: Known to cause cancer in humans. Based on studies of exposure in the workplace. Also shown to cause cancer in laboratory animals. Chemical: Chromium (hexavalent compounds) Potential Exposure: Widely distributed in the air, water, soil and food. It is used in many products including stainless steel, paint pigments, cement, rubber and composition floor coverings. Chrome plating shops are considered a major potential source of chromium contamination of the air and water. Effect: Known to cause cancer in humans. Based on studies of exposure in the workplace. Also shown to cause cancer in laboratory animals. Chemical: Ethylene oxide Potential exposure: Used in manufacturing a variety of products and by hospitals to sterilize medical equipment used in surgery. Many hospitals release ethylene oxide into the air after using it in sterilization. Effect: Known to cause birth defects in humans. Studies of exposure in the workplace have shown reproductive harm. Also shown to cause cancer in laboratory animals. Chemical: Lead Potential Exposure: Widespread in the air, food and water. Once a major compoment of gasoline, lead was spread throughout the environment by motor vehicle exhaust. It is being phased out as an ingredient in gasoline. Lead is used in making many products, including batteries and soldered pipes. It is also used as solder for tin cans that are used in packaging some food products. Effect: Known to cause birth defects in humans. Studies of children have shown that it can cause neurological damage, which can lead to learning disabilities. Chemical: Vinyl chloride Potential exposure: Used in making virtually all soft plastic products. It is known to leach into foods and beverages from plastic packaging materials. It is also present in cigarettes. Effect: Known to cause cancer in humans. Based on studies of exposure in the workplace. Also shown to cause cancer in laboratory animals.