The Coffee Warnings Case Illustrates the Law’s Perverse Results

Thousands of Prop 65 violation notices have seen served on companies selling foods, drinks and supplement products to California consumers. Millions of dollars have been paid in penalties and attorneys’ fees to resolve these matters.

California’s Proposition 65 was enacted in 1986 by the voters through a ballot initiative written by a public interest lawyer. (Health & Safety Code section 25249.5, et seq.) It requires warnings where certain chemicals are in products sold in California unless the defendant can prove the chemical is not present in the product at a level that causes harmful exposure. The law allows private enforcer “bounty hunter” plaintiffs who, in addition to a portion of penalties a company must pay, receive attorneys’ fees they incur, an amount that exceeded $20 million dollars last year. Over 30 years later, the law has only metastasized to go after more industries, the latest example being cannabis dispensaries, and often with absurd results.