AHPA recommends changing Prop 65 warnings

By Hank Schultz

- Last updated on GMT

Related tags: Class action, United states, Michael mcguffin

AHPA recommends changing Prop 65 warnings
The American Herbal Products Association has weighed in on draft proposals to amend California’s Proposition 65.  Among the group’s recommendations are changes to the language of the warnings mandated under the law.

The draft proposals come about as part of an initiative by California Gov. Edmund Brown Jr. to improve the law. In a written submission, Michael McGuffin, president and CEO of AHPA, voiced the concern that the comment window on the draft changes is too short.  McGuffin, in fact, had received a deadline extension to get his comments in.

"The best ideas for potential reforms to this law will almost certainly be identified by taking more time to gather and evaluate ideas from all interested parties in a more deliberative process,"​ McGuffin wrote.

Warning label refinements

As far as the warnings are concerned, AHPA is recommending a change that would drive toward the real health concern the presence of a certain substance might pose, rather than the blanket warnings that have become ubiquitous in the state, posted on products, in public spaces and even in rental cars.

“The law is very difficult. The law needs reform from almost any perspective. It certainly needs reform from the perspective of industry, but I can make a cogent argument that from the perspective of the consumer it needs reform, too,”​ McGuffin said.

“I think the governor has balanced those needs.  I think he understand he needs to hear the needs of business of California.  But I also understand that he finds it frustrating to find theses signs everywhere that don’t provide sufficient information. It just creates an atmosphere of alarm. 

“I live in California. That sign is on everything; it doesn’t mean anything to me,” ​McGuffin told NutraIngredients-USA.

One of McGuffin’s concerns is that the warning labels as they exist create an atmosphere of undue threat without providing enough specific information to guide consumer decisions. In his comments, McGuffin  laid out an example of a product that contains cadmium. Rather than say “contains cadmium, a chemical known by the State of California to cause reproductive harm in men”​ McGuffin suggests the warning should be changed to “Not for use by men who are trying to conceive.”​  This drives at what the warning is about, he said, without unfairly stigmatizing companies that are trying to comply with the law.

“Let’s warn the population that needs to be warned,”​ McGuffin said.

Private enforcement changes

The draft changes to the law includes changes to the measure’s oft criticized private enforcement provision. The draft proposals would put new requirements on parties that seek to bring class action lawsuits under the law. While McGuffin said he sympathizes with the intent of the changes, he was unsure if in and of themselves they would restrict the number of cases that are brought, and might just mean that the costs of the new stipulations would be tacked on to settlement bills. In recent years settlements have been running at the rate of several hundred per year at an average of about $60,000 a pop, McGuffin said.

“No one has proposed that the private enforcement be removed. That would not be tenable,”​ McGuffin said. “(The draft changes) would require them to have better information. What this means is that they are going to invest tens or dozens more billable hours. You have to recognize that the cost of settlements will go up.

“If you can balance that with reducing the likelihood of settlements, then I think you’ve got the kind of reform that the governor intended. If we go down to 10 to 20 settlements a year and they go up to (an average) $80,000 or $90,000, maybe that’s a worthwhile tradeoff,” ​McGuffin said.

Read McGuffin’s full comments here.

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