Moreover, because Prop 65 is enforced entirely through litigation, it has created a system of legalized extortion. To initiate a lawsuit, a plaintiff need only show that a listed chemical is present in a consumer product and that the defendant business “knowingly” exposes Californians to that product without posting the warnings. Prior to filing the suit, the plaintiff must send the defendant a notice describing the exposure; 60 days thereafter, the plaintiff may sue. That notice may be the first inkling a retailer has that his products are exposing consumers to listed chemicals.
The latest chemical to run afoul of Prop 65 is di-isodecyl phthalate, or DIDP, an important and extremely useful additive used to soften hard vinyl plastic and found in dozens of common items, including shower curtains. It is also used to insulate the wires in the walls of homes across America. Safely used for more than 50 years, it is one of the most thoroughly tested products in the world and has been closely examined by numerous regulatory agencies throughout the United States and Europe. Through all that evaluation, no credible scientific review has found DIDP to be dangerous in normal use.
However, those favorable conclusions didn’t faze regulators at California’s Office of Environmental Health Hazard Assessment (OEHHA), who recently decided that DIDP may pose a risk of developmental harm in humans and, therefore, should be listed under Prop 65.
But the mere presence of something does not imply that it’s dangerous; one needs to know the dose, length of exposure, how the body disposes of it, and so forth. Prop 65 standards only look at the potential for risk as criteria for listing. Using that logic, since people regularly suffocate from a chunk of meat blocking their windpipe, maybe steaks should be listed too. (One hates to give the regulators ideas, however.)