California is recognized for its aggressive and progressive laws created to provide public notice of chemical dangers to which the public may be exposed. In 1986, California’s voting population enacted Proposition 65, or “Prop 65.” Proposition 65 is a widespread initiative meant to protect drinking water from chemical contamination. It is also aimed at mandating businesses to provide notice to the public of potential exposure to toxic chemicals that are linked to reproductive harm, birth defects, or cancer. Specifically, Proposition 65 established to prevent toxic or potentially hazardous exposures that cause cancers like malignant mesothelioma.
Asbestos is a carcinogen included on the list of items covered under Proposition 65. Malignant mesothelioma is a deadly kind of cancer that is linked to exposure to asbestos. Tiny asbestos fibers invade the lungs latching onto the mesothelium or membrane linings, which can later lead to the growth of malignant tumors.
Pleural mesothelioma affects the majority of the U.S. population. It is the mesothelioma of the lungs. Another common type of mesothelioma is peritoneal mesothelioma, which affects the abdominal cavity. A few other types of mesothelioma include pericardial and testicular. All types of mesothelioma are terminal, and there is not currently a cure.
What is Asbestos?
Asbestos is a naturally occurring mineral. It is composed of flexible fibers that are resistant to corrosion, electricity, and heat. Asbestos was even referred to as a “miracle mineral” because of its industrial benefits. However, exposure to asbestos is highly toxic. Trapped asbestos fibers in the lungs can lead to scarring and inflammation in the linings of the lungs, abdomen, heart, or other internal organs. All types of asbestos are carcinogenic to humans, including chrysotile.
Asbestos associates to six minerals that occur naturally across the globe:
Malignant Mesothelioma and Asbestos
Since asbestos was beneficial in American product manufacturing, it was used heavily and without restrictions until the 1970s. Since asbestos was useful in the commercial industry, it was used in insulation in buildings. It was also a popular ingredient in a large number of products, including:
- Brake Linings, Pads, and Clutches
- Roofing Shingles
- Water Supply Lines
- Fire Blankets
The exposure to asbestos is also extremely deadly. Exposure to asbestos is the number one work-related cause of deaths around the world. Asbestos is responsible for claiming over 39,000 American lives to asbestos-related illnesses each year including malignant mesothelioma. That number increases to 90,000 globally each year.
Occupational exposure is the most common form of asbestos exposure. Some of the occupations that exhibit the high to moderate risks of asbestos exposure include:
- Construction Worker
- Chemical Workers
- Machine Operators
- Trade Laborers
- Power Plant Workers
- Shipyard Workers
- Boiler Workers
- Textile Mill Workers
- HVAC Mechanics
- Oil Refinery Workers
- Railroad Workers
- Building Inspectors
- Libby Vermiculite Exfoliation Workers
- Merchant Marines
There are also low-risk occupations at risk of exposure to asbestos. Here are a few trades that exhibit a lower risk of exposure to asbestos:
- Appliance Installers
- Aircraft Mechanics
Asbestos continues to prove itself as a global problem. Even though limits and restrictions have limited the amount of asbestos in the workplace and in consumer products, most of the damage is already done. According to the World Health Organization (WHO), “[c]urrently, about 125 million people in the world are exposed to asbestos at the workplace. Approximately half of the deaths from occupational cancer such as malignant mesothelioma are estimated to be caused by asbestos. In addition, it is estimated that several thousand deaths annually can be attributed to exposure to asbestos in the home.”
Secondary exposure to asbestos is also responsible for contributing to the development of malignant mesothelioma and other asbestos-related diseases. According to a source, “Secondary exposure occurred when people who did not work directly with asbestos were nevertheless exposed to fibers as a result of sharing workspace where others handled asbestos. For example, electricians who worked in shipyards were exposed because asbestos was used to coat the ships’ pipes and hulls [Pan S et al. 2005].”
In the past, workers in blue collar jobs would come home covered in asbestos dust from worker’s clothing, skin, and hair. Performing laundry of contaminated clothing also led to secondhand asbestos exposure. Other forms of asbestos were through the environment, such as the mines in Libby Montana.
For example, the Agency for Toxic Substance & Disease Research (ATSDR) performed a case study providing that,
“A mortality study of 878 household contacts of asbestos workers revealed that 4 out of 115 total deaths were from pleural mesothelioma and that the rate of deaths from all types of cancer was doubled [Joubert et al. 1991]. Also, 11 cases of mesothelioma (6M:5F ratio) were diagnosed from 1995-2006 among individuals who had not worked at the vermiculite operations in Libby, Montana, but who had some other indirect association with those operations. Most had environmental exposure from living, working, or regularly shopping in Libby community; two were family members of vermiculite workers [Whitehouse et al. 2008].”
There are also disaster-related exposures to asbestos. One of the most notable disasters is the September 11, 2001, terrorist attack on New York City. Firefighters, paramedics, police, and volunteers were exposed to high levels of asbestos. Hundreds of malignant mesothelioma diagnoses have surfaced over the last few years as a result of their exposure during the disaster.
One report shows states, “[s]cientists quickly became aware that first responders, survivors, and others had been exposed to asbestos in the cloud of dust ‘since it had been used in the construction of the Twin Towers in the late 1960s.’” The exposure to asbestos during the 2001 terrorist attack was extreme. For example, a source stated that “[t]he exposure problem at ground zero included more than 24,000 gallons of jet fuel that ignited a fire, which spread to 100,000 tons of organic debris along with 130,000 gallons of transformer oil and more than 100,000 gallons of heating and diesel oils in buildings. That doesn’t include burning fuel from thousands of vehicles parked in underground lots.”
Asbestos in Building Materials and Consumer Products
Thousands of buildings still contain materials that contain asbestos. Homes built before the 1980s more than likely contain asbestos in the walls, insulation, pipe, tiles, or cement. Since asbestos fibers cannot be seen with the naked eye, it is impossible to tell if a particular material contains asbestos. According to a recent survey, “… more than half of the owner-occupied homes were built before 1980, with around 38% built before 1970.” Therefore, this means asbestos is hiding in fifty percent of the homes in the United States that were built prior to 1980.
According to the California Office of Environmental Health Hazard Assessment (OEHHA), asbestos, “…was used in many household and building products in the past. In part because of this indiscriminate dispersal of asbestos in the human environment in past years, it is common to find hundreds of thousands to millions of fibers in human lungs.”
There are several areas of the home where asbestos could be hiding. Some of the most common areas to look for asbestos-containing materials are:
- Coal or Oil Insulation in Furnaces
- Insulation (ducts, fireplaces, sheeting, boilers, and pipes)
- Floor Tiles
- Patching Compounds
- Textured Paints
- Vinyl Flooring and Backing
- Brake pads or gaskets
- Older household Appliances
- Dated Consumer Products
Asbestos has also been used in consumer products for decades. It is still used in some consumer products today, but governmental agencies have limited the amount of asbestos allowed in consumer products to one percent. The Agency for Toxic Substances and Disease Registry (ATSDR) stated that “[p]eople can also be exposed at home, both to old sources of asbestos as a result of activities such as home renovation or to new sources of asbestos as a result of certain types of recreational activities and hobbies such as auto repairs and, in areas of naturally occurring asbestos in local soils, gardening.”
Asbestos Exposure in California
The State of California has provided some pretty shocking statistics about its residents’ exposure to asbestos. In fact, the Center for Disease and Control Prevention (CDC) provided that from 1999-2015, that a little over 4,000 California residents died from malignant mesothelioma. This statistic alone ranked California as the highest state with mesothelioma deaths.
The Center for Disease and Control Prevention also found that California’s mesothelioma death rate is about 11 per million each year. Yuba and Siskiyou were among the highest counties in California, with the highest mesothelioma death rates. Lastly, according to the United States Geological Survey of the Environmental Protection Agency (EPA), “[w]hile it is present all over the state of California — in 42 of 58 counties — naturally occurring asbestos can be found most abundantly in and around Humboldt County, in areas of San Benito and Monterey counties, and in western El Dorado county.”
In 2002, a San Francisco, California jury awarded a $33.7 million verdict to a former United States Navy electrician and his wife. The plaintiff, Alfred Todak, was exposed to high levels of asbestos in the 1960s and early 1970s while he was working as a boiler room technician in the Navy. The total verdict was $33.7 million, and the jury broke down the award as follows:
- $700,000 to Alfred Todak in economic damages;
- $22 million in noneconomic damages, including Mr. Todak’s pain and suffering; and,
- $11 million to Mr. Todak’s wife for her loss of consortium.
California’s Proposition 65 and Asbestos
California compiled a comprehensive list of chemicals covered under the law. Asbestos is on the list because it is a known carcinogen.Proposition 65’s chemical list must be updated at least once a year.
The list has grown to include a total of 900 chemicals since the list was first issued in 1987. Proposition 65 officially became law in 1986 when it was approved by a 63-67 percent margin. California’s Proposition 65 is formally named the Safe Drinking Water and Toxic Enforcement Act of 1986.
How Chemicals are Added to the Proposition 65 List
California’s Office of Environmental Health and Hazard Assessment (OEHHA) provides the rules and regulations set forth in Proposition 65. It is part of the California Environmental Protection Agency (CalEPA) California’s statute provides four essential ways for a chemical to be added to the Proposition 65 list:
- Labor Code (L.C.) – The list is required to contain chemicals recognized by the World Health Organization’s International Agency for Research on Cancer (IARC) as producing cancer in laboratory animals or humans.
- State’s Qualified Experts (SQE) – Two independent committees of health and scientific experts can establish that a chemical has been unambiguously shown to cause reproductive harm, birth defects, or cancer. Either the Carcinogen Identification Committee (CIC) and the Developmental or Reproductive Toxicant Identification Committee (DARTIC) is permitted to produce such findings. Each committee is required to meet one time per year. Additionally, the State’s Qualified Experts are also required to undergo a yearly evaluation of chemicals under Proposition 6.
- Authoritative Bodies (A.B.) – The Carcinogen Identification Committee and the Developmental or Reproductive Toxicant Identification Committee are allocated “authoritative bodies.” If one of the authoritative bodies formally identifies a particular chemical causing reproductive harm, birth defects, or cancer, it will be added to the Proposition 65 list.
- Formally Required to be Labeled (F.B.) – If the federal government or any state agencies requires a chemical be identified or labeled as causing reproductive harm, birth defects, or cancer, it will be added to the Proposition 65 list. Most chemicals listed under this provision are prescription drugs that are required by the Food and Drug Administration to contain warnings related to reproductive harm, birth defects, or cancer.
Under the California Administrative Procedure Act, under the California Health and Safety Code, the code sets the procedure for the delisting of a chemical. Additionally, there is also a process that defines the procedure for listing a new chemical to the Proposition 65 list:
- Public notice that a certain chemical is under review and consideration of listing;
- A period designated for public comment;
- A review period of the public comments received; and,
- An issuance of the final decision.
The Carcinogen Identification Committee (CIC)
The Carcinogen Identification Committee is a consortium of expert scientists appointed by the California Governor to find and identify chemicals that have been explicitly exhibited via scientifically valid testing under the generally accepted principles standard to cause cancer. The Carcinogen Identification Committee is made up of the following scientific experts:
- Public Health
- Other related fields as necessary
California’s Carcinogen Identification Committee meetings once a year and during the meeting must enact the following in accordance with California’s Office of Environmental Health Hazard Assessment (OEHHA):
- During the months prior to each meeting, scientists from the Office of Environmental Health Hazard Assessment prepare a hazard identification document that contains the scientific evidence on a chemical’s carcinogenicity. The public has an opportunity to submit relevant information to OEHHA that may be included in the document. Once the document is completed, it is released to the public for a 45-day comment period. Committee members then review the document as well as the public comments received.
- At the meetings, committee members have a chance to hear public testimony on the chemical and then review, discuss and vote on the evidence they have seen and heard.
Members will vote to add a chemical to the list only if “it has been clearly shown through scientifically valid testing according to generally accepted principles to cause cancer ….” (Cal. Health & Safety Code § 25249.8).
Warnings of Toxic Chemicals Under Proposition 65
The Office of Environmental Health Hazard Assessment must also include specific details in relation to a particular chemical warning or label. Companies doing business in California must comply with Proposition 65.
According to the Office of Environmental Health Hazard Assessment, “[i]f a warning is placed on a product label or posted or distributed at a workplace, a business, or in rental housing, the business issuing the warning is aware or believes that it is exposing individuals to one or more listed chemicals.”
Additionally, “[b]y law, a warning must be given for listed chemicals unless the exposure is low enough to pose no significant risk of cancer or is significantly below levels observed to cause birth defects or other reproductive harm.”
Businesses are mandated to give a “clear and reasonable” warning. The warning is to be provided before knowingly and intentionally subjecting any individual to any of the listed chemicals on Proposition 65, including asbestos. However, if the business can establish the probable and anticipated exposure will not pose a significant risk of cancer or if the risk is substantially below levels found not to cause reproductive harm or birth defects.
Pursuant to the rules and regulations of Proposition 65, “…this warning can be given in several ways, such as by labeling a consumer product, posting signs at the workplace, distributing notices at a rental housing complex, or publishing notices in a newspaper. The requirement to provide warnings takes effect one year after a chemical is added to the list.” Moreover, once a specific chemical is listed, businesses have 20 months to fall into compliance with the discharge prohibition.
As with any rule of law, there are always exceptions. Some businesses are exempt from the requirements within Proposition 65. In fact, businesses with less than ten employees are exempt. Government agencies are also exempt from Proposition 65’s warning obligations. Companies are also exempt from a warning obligation if the exposures they cause are substantially below levels found to cause reproductive harm or congenital disabilities.
The California Attorney General’s Office enforces Proposition 65. According to a source, “[a]ny district attorney or city attorney (for cities whose population exceeds 750,000) may also enforce Proposition 65. In addition, any individual acting in the public interest may enforce Proposition 65 by filing a lawsuit against a business alleged to be in violation of this law. Lawsuits have been filed by the Attorney General’s Office, district attorneys, consumer advocacy groups, and private citizens and law firms.”
There are also some pretty steep penalties for violating Proposition 65 notices. The penalties can result in $2,500 per violation per day.
Asbestos Chemical on Proposition 65 List
Asbestos is currently listed in Proposition 65. This means it is required to meet certain obligations. It was listed in 1987 for causing cancer such as malignant mesothelioma. The “No Significant Risk Level” (NSRL) listed the inhalation of 100 fibers per day. A warning is required for apartments and other residential rental properties under California’s Proposition 65. An asbestos warning is also required on motor vehicle parts. According to a source asbestos, “…may be present in some motor vehicle parts, including brake pads. As of 2014, asbestos is not permitted at levels above 0.1% in most brake materials sold in California.”
Proposition 65 Claim Filed Against Johnson & Johnson, Corporations, and Retailers
After dozens of malignant mesothelioma lawsuits, a Proposition 65 claim was recently filed against Johnson & Johnson and other manufacturers of generic talc-based products and retailers for failing to warn consumers of the viable cancer risks. When Proposition 65 was signed into law in 1986, it was aimed at preventing “exposure cancers” like lung cancer and malignant mesothelioma.
The Proposition 65 lawsuit names Johnson & Johnson. It also names the following retailers:
- CVS Health Corporation
- Dollar General
- Target Corporation
- Walgreen Co.
All of the above sell generic brands of talcum powder products. The lawsuit also names the suppliers that provide the retailers with the talc-based products. The suit also names Bausch Health Companies, the company which manufactures and distributes the iconic Gold Bond Powder.
The Complaint is requesting for Proposition 65 warning labels to be added to several products. The lawsuit is also asking for restitution and the civil penalties due to be imposed under Proposition 65, which, as mentioned above, can reach as high as $2,500 per violation per day.
The suit is requesting for Prop 65 labels to be added to several products, as well as for restitution and civil penalties of $2,500 per day for each violation. Lastly, the suit proposes cornstarch as an alternative to talc in baby powder and other beauty products.
If you or someone you care about has been diagnosed with malignant mesothelioma and believe it was the result of being exposed to a talc product, it is important to contact an attorney as soon as possible. An experienced mesothelioma lawyer can discuss any potential compensation or other benefits you or your family may be entitled to.
 California Health and Safety Code section 25249.8