Prop 65 Overview by William Sickert BSc., JD, CNC

Yes the overpopulation of attorneys in California rears its ugly head as firms now target nutrition and supplement companies in their failure to warn consumers about that which has no health impact whatsoever.  The companies would rather warn that have hard earned profits extorted form them by firms and labs paid off by third parties to make a buck.  Most of us grab an occasional glass of water from the tap or a glass at a restaurant…….no warning on the glasses or the menu yet you get more lead from that experience than any supplement; …..Sound absurd?   Read on……

Enacted in 1986, Propo­sition 65 is a California law designed to protect consumers from over 700 toxic substances. Prop 65 should be used as a shield to protect the public. Instead it is being wielded as a weapon to malign and destroy the nutritional supplement industry…and ultimately harm your health.

California Attorney General Jerry Brown recently sent warnings to over 50 popular nutritional supplement manufacturers. The insinuation was that their supplements had dangerous levels of toxins. Examination of this misuse of Prop 65 casts questions over Brown’s motivation for targeting healthful dietary supplements.

Proposition 65 sets a limit of 0.5 mcg of lead per serving, which is recognized by virtually every authority in the world as being arbitrarily low. We all want to limit lead to any extent possible. But this limit is far below the amount of lead naturally found in fruits and vegetables grown on clean, non-contaminated soils. When the State of California conducted its own food crop soil-lead-uptake analysis (Agriculture, Ecosystems and Environ­ment 129 (2009) 212–220), its own experts found that the most commonly consumed vegetables, from 70 different locations, averaged nearly four times the Prop 65 limit per serving.

Using Brown’s Proposition 65 standard, each serving of potatoes, lettuce, wheat, carrots and most other vegetables would require a lead warning. Meanwhile, one cup of shrimp contains 46 mcg of lead. Even a cup of carrots contains 12 mcg of lead. By sending warning letters to makers of dietary supplements with just 1 to 5 mcg of lead per serving, Brown’s message is that selling carrots in capsule form suddenly makes them dangerous.

A Low Threshold

The FDA reports that American adults naturally take in over 250 mcg of lead every day. The World Health Organization sets a safe daily limit of lead at 243 mcg of lead. Scientific research suggests that the human body contains approximately 200,000 mcg of lead.

While no one is suggesting that lead is safe, these figures show that Prop 65’s limit of 0.5 mcg in foods is arbitrarily low and unrealistic. In effect, it allows any government (or pharmaceutical industry) agent to attack any product that contains a quarter of a serving of vegetables or more.

Ulterior Motives

The same people who have been attacking whole-food supplements for the past 40 years are abusing Prop 65 to undermine DSHEA and take away our nutritional supplements. Supplement companies are being targeted with frivolous lawsuits and heavy fines. Aside from making trial lawyers rich while bankrupting the supplement makers, this flagrant misapplication of the law ultimately harms consumers.

When Prop 65 is used to target perfectly safe and healthful dietary supplements, it not only erodes our health freedom rights, but it also squanders our government’s limited resources. Legalized extortion of dietary supplements diverts vital funds and manpower away from the oversight of truly harmful products, such as lethal prescription drugs and carcinogen-tainted imports.

If you feel that Prop 65 is being misused—threatening your access to safe whole-food supplements—then make your voice heard!

Call California’s Proposition 65 Enforcement Reporting office at 510-873-6321 or fax them at 510-622-2270. Tell them to prioritize their efforts on truly harmful products—not the nutritional supplements that we take to stay healthy. Take control of your and your family’s health destiny by only buying high-quality supplements, and proactively seek out safe, pure and natural nutrition. Join the Nutritional Health Alliance to stay up to date on the Prop 65 issue and other threats to health freedom at www.nha2010.com.

In a perfect world, there would be no need for laws. Laws, by their very nature, are annoying and constricting. But this planet is far from perfect, making laws a necessary evil that people must put with for their own protection. A law is a legal order that must be followed by the affected population; non-observance or outright violation has its corresponding penalty. But some laws are ambiguously phrased, and the vagueness allows for circumventing or even evading without technically violating its provisions. What California Proposition 65 Is All About Such is the case with California Proposition 65, now officially named the Safe Drinking Water and Toxic Enforcement Act of 1986, but still better known by its original name. It was approved by California voters in 1986 with the aim of protecting its citizens and the environment from the dangers posed by hazardous substances in consumer products. Enforcement of Proposition 65 required all businesses to include information of any and all chemicals in a product which are harmful and have exceeded the standard safety limit. Information may be done through a label on the container or posted in the vicinity where the business stands. Thus, when you buy a product, you’ll see the warning label, “WARNING: This product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.” Businesses have taken to posting the Proposition 65 warning in their vicinities, as can be seen at gasoline stations, medical facilities, housing for rent, parking garages and even in seemingly innocuous places like banks and retail stores. The list of chemicals that are categorized as toxic is determined by authorized agencies, among them the Food and Drug Administration, the National Institute for Occupational Safety and Health and the Office of Environmental Health Hazard Assessment (OEHHA). Each year, the list is updated and the latest list includes about 903 chemicals. What You May Not Know About California Proposition 65 This directive is not without its issues.

• For one, putting the warning label on a product is not required if the amount of the identified hazardous chemical is below the danger level. But, without the government’s classification of the allowable level, it is the business’ responsibility to find out what the level is using acceptable scientific methods. This would mean additional expense and effort for the business owner.

• Secondly, when a certain product has the warning sign, it may be because the manufacturer chose to put it because the chemical is actually present, even without verifying if it has exceeded the safe level or if it may even be zero. The business owner would rather include the warning rather than risk violating the law or spending effort and money to determine a chemical’s safety level.

• Thirdly, it is not a violation of Prop 65 to post a warning, however unnecessary. These warning signs have become so commonplace that consumers don’t take notice anymore and it loses it purpose to educate and inform them.

  Dietary Supplements and California Proposition 65 Food, vitamin and mineral supplements have not been spared from the issues that have cropped up. One supplement can contain several ingredients that are normal and useful in their safe levels but become toxic when multiplied. One ingredient that stands out in the issues of Proposition 65 is lead. Lead in its basic form is not knowingly added to food supplements but it can be found naturally in calcium carbonate. Calcium is one of the more popular mineral supplements that people take. It promotes the growth of healthy bones and teeth in all ages, prevents osteoporosis especially in women, and plays an important role in heart contraction. Pregnant women take calcium for themselves and for the baby they are carrying. A chief source of calcium are oyster shells. These oysters contain lead, taken in from the environment, as with other lead sources. A study that appeared in the Journal of the American Medical Association in September of 2000 revealed that more than half of the products examined had lead levels that were below the detection range of 0.25 ppm and the rest had lead content from 0.35 to 0.81 ppm, still well below the safe limit for lead. Further, calcium blocks lead absorption into the intestines and lessens the toxicity of lead.

  Standard for lead limit in pharmaceutical products is 10 ppm, according to the US Pharmacopoeia, and this figure has been used as the acceptable safe limit for herbal products and supplements as well. The director for the Institute for Traditional Medicine in Portland, Oregon has set a total daily lead exposure to 0.5 mg as normal in a clean environment. The state of California has set the “no significant risk level” for lead at 0.5 mcg per day. To make matters even better, food supplements that are manufactured in the US were found not to be contaminated with lead. The researchers have attributed this finding to the following factors: the ingredients used did not contain lead, the manufacturing equipments are not contaminated with lead and the water used in the production process is clean and lead-free. The bottom line was simple: the US companies had more stringent processing methods to ensure public health and safety than even the government required. All this information should put worries to rest. Unless a health agency of the government issues an advisory against a specific drug or supplement, the warning label on the bottle is probably not as serious as it sounds. This is not to dismiss the warning outright but rather to make an informed decision and weigh the pros and cons of taking a certain drug, and being better educated about Prop 65.

“While Proposition 65’s intent was to protect Californians from carcinogens, the measure spawned a cottage industry of attorneys whose prey is California businesses (especially small retailers) and chemical manufacturers.”

Sounds like a racket to me! The above quote came from an article I found online about Prop 65. The attorneys the author refers to are causing problems for not only manufacturers of chemicals, but also dietary supplements. Today alone I had two conversations about this topic. One was with a client who is concerned about Prop 65 hurting their supplement business and wanted my help. The other conversation was with the CEO of a large supplement company who is currently dealing with its ramifications.

So what are the ramifications of Prop 65 for supplement companies? I’m not a legal expert, but based on what I’ve been told, companies selling products into the state of California will have to add what I see as an unnecessarily dire warning to their product labels. The warning essentially tells consumers that the product contains chemicals that the state of California thinks will produce birth defects and cancer. This is very misleading.

Californians are used to scary product warnings, however, the supplement company owners and executives whom I’ve spoken with fear that consumers in other states may react negatively to Prop 65-related warnings, resulting in declining sales of their products.

“What if I put a Prop 65 warning only on products being sold in California?” Sounds like a good idea. The trouble is that because of the way in which products are distributed, this may not work. Another solution would be to stop selling your products in California. But that’s not really a solution, being that California represents such a large marketplace for supplements.

A number of the big players in the sports nutrition industry have already been served notices related to Prop 65. Their legal counsels are taking actions to deal with it, such as by updating their product labels to bear the Prop 65 warning.

I’ve also been told that some members of the supplement industry are trying to fight Prop 65. Whether they will be successful remains to be seen.

So who is ultimately benefiting from Prop 65? Not surprisingly, attorneys appear to be making a lot of money off of this abused piece of legislation. And consumers? They’re no better off, at least where it concerns dietary supplements.

Respectfully submitted,

William Sickert