We’ve all had a good chuckle at the expense of lawyers. Even my own mother has told a few jokes about her son the attorney. Unfortunately, some of these often-repeated set-ups — like the line of lawyers chasing after ambulances — have a firm basis in reality.
Perhaps no state boasts more of these opportunistic trial lawyers than California. Thanks to one of the most attorney-friendly laws ever passed, lawyers in California don’t have to look far for clients.
Twenty-five years ago, California voters passed a ballot initiative, known as Proposition 65, requiring businesses that use chemicals with the potential to cause certain health problems to warn consumers of possible exposure. On its face it sounds reasonable — who wouldn’t want to know if they were about to be exposed to carcinogens? But in practice, it just means Californians regularly see warning labels when they purchase coffee, flip-flops, sunglasses, grills and thousands of other common products.
These warning labels are everywhere in California. You can’t go to a grocery store, an airport or a gas station without being warned you might get cancer. But that doesn’t mean lacing up your sneakers is going to give you cancer — it just means that the bar for earning a label is so low that the businesses selling these products have to warn you of even the tiniest theoretical risk of health problems or else they’ll be slapped with a lawsuit.
Nearly every single business that operates in California is at risk of being sued — and not just by the state. When voters passed the law, they gave private citizens the power to enforce it, and these good Samaritans (frequently called “bounty hunters”) get a cut of whatever penalties these businesses pay. Fines can reach up to $2,500 per day, per violation.
It’s an extremely lucrative racket: Bounty hunters can identify a single product missing a Prop 65 warning and then proceed to sue both the manufacturer of the product, the distributor and every single retail establishment that sells the product in the state of California. Often, businesses opt to put a Proposition 65 warning sign up as a precaution against lawsuits, regardless of whether any listed chemical is actually present.
Defending against a Proposition 65 lawsuit is notoriously difficult. To win, businesses have to prove either that their product does not contain one of the nearly 900 chemicals California has put on its “warning list” or that the product contains the chemical in amounts too small to pose a health risk. Even if they are successful, however, they still have to pay for the testing of their products, their own attorney fees, and they waste valuable time and resources fighting the lawsuit.
Because the deck is stacked firmly against them, most businesses opt to settle their cases rather than taking their chances in court — an outcome heavily favored by bounty hunters and their attorneys.
Consider the numbers: In 2013 (the last full year for data), businesses paid more than $17 million in settlement payments. $12.7 million (73 percent) of that total went directly to plaintiffs’ attorney fees. A handful of firms specializing in these lawsuits have raked in millions of dollars.
Maybe all this litigation and these business headaches would be worth it if Proposition 65 actually made Californians healthier. But it hasn’t. Research shows California hasn’t seen any decline in cancer rates despite warning its citizens that they’re exposed to carcinogens every day. And it’s a logical outcome. When everything has a warning, there is no warning. It’s the modern-day version of the children’s story about the boy who cried wolf.
Instead, this unnecessary law started a trend in which other states began to mimic California, making judgments about chemical and ingredient safety that are usually the responsibility of the federal government. Now, instead of just dealing with California’s bounty hunter threats and the federal government’s own byzantine policies, manufacturers and retailers have to comply with an increasingly colorful patchwork of state laws and regulations.
This major headache is why Congress is now seriously considering legislation to stop this spread of competing state laws and instead, require the federal government to do more to ensure that the products we use every day are safe (and don’t require ridiculous warning labels). The last thing we need are more states encouraging ambulance-chasing lawyers and their bounty hunter clients to sue neighborhood hardware stores and coffee shops.
Unfortunately, federal action won’t clean up the mess Californians created in passing Proposition 65. It’s time for California to step up to the plate and finally put these plundering law firms out of business.
• Rick Berman is president of Berman and Co., a Washington public affairs firm.
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