Suits that enforce right-to-know laws governing the public’s exposure to pollutants and toxics have proven to be extremely potent tools for environmentalists and public health advocates. This kind of citizen action aims to provide the public with detailed information from polluters—the kind of information that has been vital to ensuring effective enforcement of environmental laws.
Federally, the flagship statute guaranteeing the public’s right-to-know about toxics exposures is the Toxics Release Inventory (TRI). The federal program documents the levels of 667 toxic chemicals released into the environment and the volume of toxic waste created by tens of thousands of industrial facilities. It is the most comprehensive program in the nation requiring these companies to provide information on their contributions to toxic pollution. However, most industrial chemicals are not reported pursuant to the TRI, limiting its use as a private enforcement tool. In fact, the 667 TRI chemicals comprise less than 1% of the chemicals registered for use in the U.S., and the TRI doesn’t require companies to report chemicals placed in their products. Additionally, TRI data do not include releases from oil wells, medical waste incinerators, and airports.[15]
In response to the many limitations of the TRI and other federal right-to-know programs, environmental advocates crafted California’s Proposition 65[16] to ensure that information about the widest possible list of known toxins was available to the public. Prop. 65 relies on disclosure, rather than regulatory commands, to create what California’s lead agency describes as "a market-based incentive" for some manufacturers to remove listed chemicals from their products and for others to reduce or eliminate toxic exposures. Prop. 65 can be enforced either by public prosecutors or by citizen suits. When combined with the burden shifting requirements of the law, California’s toxics-warning statute has stimulated widespread compliance and product reformulation.
Reformulation: the best outcome of Prop 65’s
right-to-know mandate
In many cases, a company facing Prop. 65’s
tough requirements will decide to reformulate their
product rather than warn the public about exposure.
Product reformulation has a cascade of benefits.
Consumers are the obvious and intended beneficiaries,
but the end user is not the sole beneficiary of reformulation.
Consider, for example, the case of lead. Prop. 65
has been used to eliminate or reduce lead in everything
from Christmas lights to galvanized pipe. Reducing
lead in these products benefits not only the consumer
but also reduces exposure of workers who produce,
inspect, transport, and sell the items. This also
means less lead ends up as waste in landfills and
waterways. Reduced demand for lead relieves pressure
to mine it, which is also especially good for the
environment.
Although Prop. 65 is a California statute, consumers
benefit nationwide when corporations reformulate
an entire product line. It is not unusual for several
different manufacturers of similar products to reformulate
after one manufacturer is sued, giving rise to a
benchmark effect for the industry.
