As appeared in Fox & Hounds Daily Thursday February 11, 2016.
by Tom Scott, State Executive Director, NFIB California
There are two very different types of actors in the realm of making our economy tick. Entrepreneurs wake of every day trying to think of new ways to innovate, to expand, and thus create new jobs. Then there are the regulators in Sacramento who wake up every day thinking of new, creative ways to add burdens and barriers to operating your business in California and beyond. Their latest regulatory red alert: Aloe vera.
You read that correctly: Aloe vera. In December of last year, the Office of Environmental Health Hazard Assessment (OEHHA) published its intent to list Aloe vera, whole leave extract to the Proposition 65 list of chemicals known to the state of California to cause cancer. Despite the widely accepted extensive health benefits of Aloe vera, an unelected regulator in Sacramento can now tell you and all consumers it will cause cancer, even if no cases of cancer from Aloe vera exposure exist.
The problem is that the 800+ chemicals listed in Proposition 65 are not devised to protect consumers, but rather serve as a cash cow for private trial lawyers to sue small business and reap the hefty settlement payout. Since 1986, nearly 20,000 lawsuits have been filed, adding up to over half a billion dollars in settlement payments by business owners.
Unfortunately, the most profitable thing regulators give to trial lawyers at the expense of job creators is confusion. Recent Proposition 65 proposed regulatory revisions create compliance difficulties, increase frivolous litigation, and add consumer confusion.
Included in these proposed revisions are additional Prop 65 labeling requirements on the immediate container or wrapper of products containing at least one of the twelve chemicals listed by OEHHA. However, the chemical(s) only need to be listed if it exists at a “level that requires a warning.” Which products need a Prop 65 warning label and which do not? A lawyer only needs to know the chemical exists to take legal action; the costly burden to prove it exists at a safe level falls on the business owner.
Beyond package labels and chemical lists, new proposed regulations seek to further specify even the acceptable font size for Prop 65 warning signs. Most business owners would not know that the font on a Prop 65 warning must be “no smaller than one half the largest type size used for other consumer information.” The average small business coffee shop owner is likely unaware that he or she may be at serious risk for a frivolous lawsuit because of a minor font size error.
Confused yet? The bottom line is that these regulations exist to cause confusion, and the latest addition of aloe vera to the list of chemicals known to the state to cause cancer only further confuses both consumers and small businesses. Every time a chemical is added to the Prop. 65 list, it simply creates one more avenue for trial lawyers to sue.
If our regulators and legislators in Sacramento spent half as much effort thinking of ways to support small business as they do devising new creative ways to regulate them, perhaps California would not be ranked dead last for its business climate by CEO Magazine ten years in a row, nor would we be listed as the #1 Judicial Hellhole by the American Tort Reform Foundation.
Small businesses reflect the lifeblood of every community across California and the nation. Each day, entrepreneurs struggle to thrive in spite of additional mandates and regulations—now small businesses can add aloe vera to their list of things to worry about. Let’s instead focus on policies that support small business, not regulations that add to the cost of doing business in California.
For more than 70 years, the National Federation of Independent Business has been the Voice of Small Business, taking the message from Main Street to the halls of Congress and all 50 state legislatures. NFIB has 350,000 dues-paying members nationally, with over 22,000 in California. NFIB annually surveys its members on state and federal issues vital to their survival as America’s economic engine and biggest creator of jobs. To learn more visit www.NFIB.com/california.