California Prop 65
What is this scary warning on my superfood?
In 1986, California passed Proposition 65 – a well-intentioned, but poorly-written law to help keep California residents safe from dangerous chemicals (including dumping toxic waste into California waters). But what started as a good idea and a list of 30 chemicals has ballooned to over 800 substances (click here for the full list) and created a huge problem with lawsuit abuse, extortion, misleading labels, and ineffective reform.
It is well documented that this law has been abused by exploitative, for-profit law firms and individuals who rake in millions upon millions of dollars in settlements ($17.4 million in 2013 alone) with little to no benefit for Californians. Many of the natural foods companies that find themselves under attack are forced to include this scary warning on their products:
“WARNING: This product contains a chemical known to the State of California to cause cancer, or birth defects or other reproductive harm.”
You'll find this warning on food products, airplanes, in coffee shops, restaurants, and if you look close enough, just about everywhere in California. Because so many businesses and products fall under the requirements, there is no real way for consumers to know what the actual danger is.
The Sunfood products you have seen this warning on most likely contain minuscule amounts of these substances. They are naturally occurring in the soil where our organic crops are grown, and they are perfectly safe to consume – read on to find out why.
Is my food safe?
Yes! We believe in the safety levels set by the EPA, FDA, EU, and WHO for lead, cadmium, mercury, and arsenic (the four most common heavy metals found in superfoods). In fact, our products fall well below these nationally and internationally-recognized safety levels. But Prop 65 standards are set at levels that are often impossible to reach with plant-based foods that naturally (and harmlessly) absorb these heavy metals from the soil.
Prop 65 requires warning labels or signage whenever exposure could cause more than “one excess case of cancer in 100,000 individuals exposed to the chemical over a 70-year lifetime.” Often these levels are 1,000 times lower than what is considered normal “safe” levels – creating standards that realistically can’t be met.
The truth is, there is absolutely no proof that products carrying this warning cause cancer or birth defects.
California’s Office of Environmental Health Hazard Assessment clearly states:
“A Proposition 65 warning does not necessarily mean a product is in violation of any product-safety standards or requirements.”
And according to the American Cancer Society:
“Scientists classify all of these cancer-related substances at least as probable carcinogens, meaning that they might cause cancer in some people. But not all of them are known carcinogens (known to cause cancer) by groups and experts outside of the state of California. This means that not every compound labeled as a possible cancer-causing substance has been proven to the worldwide scientific community to actually cause cancer.”
There are actually more of these substances in common, everyday foods than there are in our superfoods. But have you ever seen a Prop 65 warning on an avocado?
Why are these substances (heavy metal minerals) in my superfoods?
Even more inexplicable, and the most important factor concerning superfoods, is that there is no distinction drawn between substances naturally found in soil and crops, and the chemicals found in something like airplane exhaust fumes or industrial paint.
According to Prop 65, consuming organic Cacao Powder poses the same health risks as ingesting or inhaling flakes of lead paint because they both contain a certain amount of the same chemical.
This results in foods which naturally and beneficially contain heavy metal minerals being treated exactly the same as a mined, concentrated, industrialized product like batteries or paint. Of course it is dangerous and unhealthy to consume the toxic chemicals found in batteries and paint, but there is a HUGE difference when it comes to heavy metal minerals that are organically bound to plants.
Organically Bound Chemicals (heavy metal minerals)
Minerals like iron, calcium, lead and cadmium are found in soil all across the globe. They make their way into many of the crops we eat through root uptake and plant metabolism. This is how the plant gets nourishment to grow in order to provide you (and us) with numerous health benefits when we eat them. These minerals are integrated into the fibers of the plant, and organically bound to them. When we eat these plants, our body uses, absorbs and disposes of these substances very differently than if we accidentally ingest flakes of lead paint.
For example, in plant-based foods that contain naturally-occurring (what we call “bound”) lead, only 20% of this lead is actually absorbed because the rest is chelated in the fibers and tissue of the plant, and passes out of the body undigested. Similarly, for any naturally-occurring cadmium in plant-based foods, only about 4% is actually absorbed (source: Essential Living Foods).
Considering the miniscule amounts of these heavy metals found in superfood products, it is our belief they pose no risk at these naturally occurring concentration levels.
However, the chemicals found in industrial products like paint and batteries are from mined and concentrated heavy metals, and if these chemicals end up in food, air, or water, they are very dangerous. They are not bound to an organic, living plant, and are definitely toxic.
Of course Californians should be protected from having these industrial, toxic chemicals in our air, food, water, and soil, but the confusing language and incredibly stringent standards of Prop 65 are not accomplishing this goal.
Why isn’t Prop 65 helping?
Prop 65 does not offer a solution. It doesn’t limit the amount of “cancer-causing” chemicals that can be put in a product, just that the warning be carried if levels are exceeded. It also doesn’t mandate disclosing which chemicals are in the product. On the list of over 800 carcinogens, some have even been declared safe by the FDA and other government bodies. In regards to food, Prop 65 makes no distinction between natural or completely artificial products, and as previously noted, there is no distinction between naturally occurring or man-made chemicals. So what exactly are Californians being saved from? How are you supposed to know?
Prop 65 is hurting lawful natural food companies that are actually in compliance. The leading reason behind the hundreds of lawsuits is that Prop 65 has a “citizen-suit” provision. Meant to pay for itself and not require funding from legislature, this has allowed self-seeking lawyers and individuals to bring suits by claiming it’s “in the public interest,” without needing proof of violation, and putting the burden of truth on the manufacturer. These law firms don’t even have to prove that they have been injured in any way by whatever violation of the Prop 65 they are claiming.
These suits are very expensive and devastating to many small businesses that produce safe, law-abiding products. If a company can afford it, they nearly always settle out of court, with a large percentage of the settlement money going to the law firm, some going to the individual who brought the case and the balance going to the state.
In 2013, businesses paid $17.4 million in Proposition 65 settlement payments. Of that total, a whopping 73% ($12.7 million) went to attorneys fees. In 2012, businesses paid roughly $22.5 million in settlements.
Between 2000 and 2010, businesses paid more than $142 million to Proposition 65 cases—a figure that does not include the amount paid from cases that actually went to trial. Almost $90 million, or 68%, of that settlement money went to attorneys fees. Of all the suits filed claiming a violation of Prop 65, and with all the money involved to settle them, only 15% were suits brought by the state of California. This means that the vast majority were simply profit-seeking attorneys.
Why doesn’t the law change?
The unfortunate truth is this law is intentionally difficult to change. Because it was passed as a ballot initiative, two-thirds of lawmakers in both chambers of the legislature must pass a bill that “furthers the purpose of Proposition 65.” As in modifying the current requirements, not changing it altogether. Any more substantial reforms would have to be approved by voters, which is notoriously difficult to achieve.
So, our only option for now is to abide by the law and do our best to inform customers.
Prop 65 is a failed attempt to keep Californians healthy, safe, and away from dangerous chemicals. It is massively flawed, ill-informed, and unrelentingly exploited by profit-seeking lawyers. Hundreds of respectable, law-abiding natural food product manufacturers have been harmed by these lawsuits, with little or no benefit to the people Prop 65 is supposed to protect.