This article originally appeared at The Sacramento Bee on December 4, 2011.
The pepper-spraying of 11 peaceful protesters at the University of California, Davis, provides an opportunity to reopen questions long ignored. Is oleoresin capsicum, the key ingredient of pepper spray, known to be safe? And if so, why have the authorities never performed the health risk assessments that were required by law when the weapon was introduced in 1992? Are they afraid of anything?
I was a state senator who worked on the issue when the state's Office of Environmental Health Hazard Assessment was charged with conducting health studies during a three-year period in the 1990s. When the incident last month at UC Davis became a shocking global image, I checked with officials at OEHHA to see if the state has ever done a risk assessment.
The straight answer from acting director George Alexeeff last week was no. Not his agency, not the state's Department of Pesticide Regulations, either.
The public assumes that pepper spray is nasty but safe. Anchors at Fox News chuckle about it being nothing more than strong cayenne pepper, a "food product." Since it's a laughing matter at Fox News, I wonder why they don't boost their ratings by spraying their pundit Meghyn Kelly in prime-time.
My interest in the research of pepper spray is partly personal. I am one of the few legislators, past or present, who actually has experienced pepper spray. Its antecedent forms of tear gas were used a lot against civil rights and peace demonstrators in the 1960s. I was blanketed with oleoresin capsicum-based pepper spray, along with almost everyone else, during the 1999 Seattle protests against the World Trade Organization. I was familiar with the ACLU's 1990's investigation of more than two dozen inmate deaths, often by strokes, shortly after they were incapacitated by the spray. I worried about its use by cops to impose "street justice." One example is the 1997 case when Humboldt County deputies rubbed liquid pepper spray into the eyes of protesters trying to save the redwoods.
I knew firsthand that it was nasty, that it could blind you, make you vomit, drop you to your knees, knock the breath out of you. I wondered at claims that its effects were only momentary, or how there could be no adverse impacts on pregnant women, people with asthma or cardiovascular problems, or who were elderly or frail.
What I found was a disturbing tale of how the politics of law and order, combined with a preference for privatization over regulation, led to an utter lapse in protecting public health and safety.
In 1992, Attorney General Dan Lungren – now a U.S. congressman – authorized a three-year trial use of oleoresin capsicum pepper spray by invoking the power of the state Department of Justice. The condition of his provisional deregulation order, however, was that the Office of Environmental Health Hazard Assessment prepare an independent health risk assessment during the same period.
Some of the OEHHA scientists were alarmed, according to emails disclosed under a state's public records act request by the ACLU. One scientist wrote that "I am receiving phone calls and being pressured by California police departments in major cities (LAPD called me this morning) to reconsider our decision to disapprove the use of oleoresin capsicum tear gas in California … it is clear to me we should sit on this. The major problem is that toxicology studies do not exist."
The required studies never happened and, by 1995, Lungren had found a liberal partner in then-Assemblywoman Jackie Speier – who also later became a member of Congress. Speier wanted to make pepper spray available for women's self-defense, and so she authored Assembly Bill 830 in 1995. Passage of the legislation essentially deregulated the use of pepper spray in the state and effectively ended the Office of Environmental Health Hazard Assessment role in studying oleoresin capsicum.
Serious questions remain. A 1993 review by the U.S. Army's Chemical and Biological Defense Command, which was obtained by the ACLU, noted that pepper spray could produce "mutagenic and carcinogenic effects … cardiovascular and pulmonary toxicity, neurotoxicity (and) possible human fatalities."
But instead of pausing, the FBI began promoting pepper spray among police departments nationally. On Feb. 12, 1996, the FBI's lead expert on pepper spray, Agent Thomas Ward, resigned and pleaded guilty to having been on the payroll of a pepper spray manufacturer, Cap-Stun.
In 2000 I authored legislation, Senate Bill 1489, requiring OEHHA to resume its research on the possible risks from pepper spray and to draft guidelines for its safe use in California. The bill passed both houses of the Legislature but was vetoed by Gov. Gray Davis, who said the measure "may have merits" but should not receive special treatment in the budget.
This is where things stand today, nearly two decades later. And it is perhaps why the campus police at UC Davis could appear to be so cavalier in dousing 11 students over and over as they sat in a nonviolent protest.
It is time for Gov. Jerry Brown and the Legislature to shore up public confidence by ordering an independent risk assessment of pepper spray now.