California's Prop. 65 and Herbs

WARNING: All herbs and herbal products sold contain chemicals known to the State of California to cause cancer and /or birth defects or other reproductive harm. California's 1986 referendum Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, will significantly impact the sale of herbal remedies, both by importers, wholesalers, retailers and health care practitioners. Prop. 65 requires, among other things, that products sold in California containing heavy metals above the Prop. 65 specified "safe harbor" level must contain a warning label. All herbs and herbal products that we sell may contain chemicals listed under Proposition 65. However, the Prop. 65 levels for each heavy metal are set very low, at 1/1000 of the known harmful level for pregnant women. This standard is many times below the standards set by both the United States and Australian Pharmacopoeias, guidelines used in the manufacturing of drugs and therapeutic goods. It is not uncommon for herbs, whether or not from China, to contain heavy metals. It is believed that these elements are in the soil where they are grown.

It is important to remember that it is not illegal in California to sell products with heavy metals above the Prop. 65 levels, but it is illegal to sell them without a warning. The warning must read:

WARNING: This product contains chemical known to the State of California to cause cancer and/or birth defects or other reproductive harm.

If you live in California you see this sign posted in the doors of supermarkets, convenience stores, gas stations, and endless other places. Thousands of consumer products are affected by this law. For example, sand (silica), which is commonly found on spinach in the Supermarket, is a chemical known to cause cancer under Prop 65.

Unfortunately, it does not matter that it is the opinion of many experts that the dosage levels set by the Pharmacopoeias are sufficient to protect individuals. Proposition 65 is the law in California and must be complied with. Proposition 65 also allows private individuals and entities to act as enforcers of the proposition, and for them and their lawyers to reap significant economic gain if they are successful. As the California Attorney General has not yet taken industry wide action, there is now a group of  "bounty hunters" in California, some with with serious environmental concerns and many others just out for the money. Most people in the health food industry would prefer for the California Attorney General to initiate a industry wide enforcement, rather than allowing selected businesses to be sued by those who have an economic incentive to proceed. But this is lawful. A number of importers and wholesalers of herbal products have recently been sued for non-compliance with Proposition 65. It is likely that some of our products will contain Proposition 65 warning labels in the future as manufacturer's adapt to these rules. However, we feel that the products are safe. Interestingly enough, a company could sell the exact same products and not have the Prop. 65 warning if they operate outside of California. Proposition 65 is a California law. If you would like more information on Proposition 65 you can call the California Environmental Protection Agency (916) 445-6900. Information can also be found at their website: www.calepa.ca.gov.