ERC boss: I’ll keep filing prop 65 notices until you get your house in order

By Elaine Watson

- Last updated on GMT

Related tags: Law

Consumer protection or legalized blackmail?
Consumer protection or legalized blackmail?
The man behind a recent surge in controversial ‘prop 65’ violation notices targeting the dietary supplements sector claims he will not stop until the industry gets its act together on contaminants.

Chris Heptinstall is the executive director of the Environmental Research Center (ERC), an organization on a mission to “safeguard the public from ingestible health hazards that impact families, workers, and the environment”.

ERC has filed more than 200 notices to scores of supplement firms in recent months alleging that their products contain lead, arsenic and other products known to be carcinogenic and that they failed to provide legal warnings to consumers under Californian statute Proposition 65.

We won’t slow down

Speaking to about his plans, Heptinstall said: “We are going to continue​ [targeting the supplements trade]. We are not going to slow down at all.”

Introduced in 1986, prop 65 requires manufacturers selling products in California to warn consumers if their products expose consumers to any​ detectable amount of 800+ chemicals believed to cause cancer or reproductive toxicity.

However, it has proved highly controversial given that many of the substances in question are routinely and often naturally present at trace levels in scores of foods, beverages and supplements without necessarily presenting a threat to human health.

Once issued with a notice from an organization such as ERC alleging that one of the 800+ substances has been detected in their products, the burden of proof is then on manufacturers to prove that their products do not threaten consumers or slap warnings on pack saying they contain ‘chemicals known to the State of California to cause cancer and birth defects or other reproductive harm’, prompting some lawyers to argue that prop 65 has turned into a form of legalized blackmail.

No interest in putting companies out of business

But Heptinstall rejected this argument, adding: “I’ve got no interest in putting companies out of business, I just want the industry to test its products and make sure it is compliant with the law, especially when it comes to lead and arsenic. Companies must then reformulate their products to make sure they are compliant with prop 65 levels.”

As for claims that the safe harbor thresholds set for substances such as lead (0.5 micrograms per daily serving) were “absurdly low​”, he said: “Yes, 0.5 µg is low, but it’s a cumulative issue; if you have product A, B and C in a day and all of them contain lead, it begins to add up.”

Washington DC-based advertising and labeling attorney Ivan Wasserman said prop 65 was a"very difficult law for manufacturers to cope with. The way the statute is set up, even responsible companies are at great risk of a challenge of some sort, and while you should prevail if you know what’s in your products it’s still going to cost you a lot of money.”

Click here​ to read more about industry frustration with prop 65.

Click here ​to read more about a new seminar helping manufacturers comply with prop 65.

Related topics: Regulation

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1 comment

Legistation Changes

Posted by Concerned Supplement User,

Instead of trying to change a consumer protection law. The industry should get a law passed saying that only the state can profit from these cases and that all lawyers not in the employ of the state, persue these cases without payment.

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