Ideas from Industry Leaders
State Toxics Law Could Happen to You
BY ELIN D. MILLER
Proposition 65 was passed by 63 per-
cent of California's general elec-
torate on Nov. 4, 1986. The Toxics
Initiative was one of the most bitter and
hard-fought political duels this past sea-
son. And if history holds true, this initia-
tive will surface again in whatever state is
next marked by environmentalists. Cali-
fornia's farmers, along with most busi-
nesses, have lost the battle. In Proposition
65's case, the battle became a war, and the
initiative will forever change the way farm-
ers farm, and most companies do business.
SOur political process allows for law-
makers to author, amend, vote on, and
sign into law rules to protect public health.
However, the initiative process turns this
system of checks and balances on its ear.
Proposition 65 has "politicized" science
and created hysteria resulting in a law
that is not scientifically nor environmen-
tally sound and will have far-reaching
impacts for all Californians.
Nevertheless, administrative agencies
and the governor must implement Prop-
osition 65-so what comes next?
Proposition 65 becomes effective Jan.
1, 1987. The governor shall designate the
lead agency or agencies to administer
this law. On or before March 1, 1987, the
governor shall cause to be published a
list of chemicals known to the state to
cause cancer or reproductive toxicity.
This list will be updated once each year.
A separate list will be published (on or
before Jan. 1, 1989) naming chemicals
that are required to be tested for poten-
tial to cause cancer or reproductive tox-
icity, but that the state's qualified experts
have not found to have been adequately
tested. This implicates U.S. Environmen-
tal Protection Agency registration stan-
dards, and California S.B.950's current
implementation by the California Depart-
ment of Food and Agriculture.
Once a chemical is on the March 1,
1987, list, Proposition 65's discharge pro-
hibition goes into effect in 20 months and
its exposure prohibition goes into effect
in 12 months. The discharge prohibition
says that no person in the course of doing
business shall knowingly release or dis-
charge a listed chemical into water or
onto land where such a chemical passes
or will probably pass into any source of
drinking water. Additionally, no person
shall knowingly or intentionally expose
an individual to a chemical without first
giving clear and reasonable warnings.
Warnings are further defined as labels,
posting, or notices in news media. Fur-
ther, the burden of warning is placed on
the producer or packager versus the re-
From a logical point of view, let's see
how this may be interpreted to impact
production agriculture and the agricul-
tural chemicals industry.
that may result
from no action....
farmers will result
in no use.
A farmer wants to apply a Proposition
65-listed chemical in September 1988 for
beet armyworm control on his lettuce.
Obviously, the "discharge" provision
comes into play. The burden of proof
that the chemical is safe lies with the
"discharger"-the applicator or grower.
If this is not enough, let's look at the
exposure provision. The farmer would
not only have to "provide clear and rea-
sonable warnings" prior to application;
further, the farmer has the responsibility
to warn the consumer of any insecticide
residue on that crop in the grocery store.
However, if the farmer can prove that,
if a teratogen, the chemical would have
no observable effect assuming exposure
at 1000 times the level in question, or if a
carcinogen exposure poses no significant
risk assuming lifetime exposure at the
level in question, the farmer can use
These unreasonable stipulations for
farmers will result in no use. It doesn't
seem possible that arbitrary health stan-
dards can take the place of years of scien-
tific testing and research. However, that
has happened in California.
Beyond California, a precedent is now
set for the rest of the country to raise the
banner for what they feel is a "mother-
hood and apple pie" concept. Ground-
water legislation and chemical fears have
been spreading throughout other areas.
The Western Agricultural Chemicals As-
sociation and our industry must take a
very progressive approach in combating
these problems, or we may see this initia-
tive process becoming reality in other
states with passage of Proposition 65-
It is virtually impossible to outline the
massive administrative workload to im-
plement Propositions 65. Because of its
nature as an initiative, it can only be
amended by two-thirds of the votes in the
state Legislature's two houses. The au-
thors of the initiative even built in a
safeguard -it can only be amended if its
intent is furthered-thus the stringent
requirements inherent can't be relaxed,
even by the Legislature.
It will be of great importance that the
regulations resulting from this initiative
be followed very closely. The initiative is
extremely ambiguous; thus, interpreta-
tion may go in any direction. The inter-
pretations will fall into the courts at great
costs not only to the accused, but also to
the California taxpayers.
The full impacts of this initiative for
all industry, not just farm and WACA
members, will be unfolding over the next
two years. If there was ever a need for a
call to action in our industry, the time is
now. Take heed to a progressive approach
on groundwater legislation. Understand
the implication which may result from no
action. Let's work collectively as an in-
dustry to stop this hysteria from spreading.
The author is executive director of
the Western Agricultural Chemicals
24 Agrichemical Age/December 1986