In a recent ruling by California’s First Appellate District Court, they found that Prop 65 warnings are only required for “direct exposure” to a listed compound. The court case involved Prop 65 enforcement allegations by Environmental Health Advocates (EHA) against Sream, Inc., a water pipe product manufacturer. Specifically, EHA alleged that Sream had violated Prop 65 by not providing a written warning on their water pipe products that the pipes exposed consumers to marijuana smoke. The initial trial court granted summary judgment in favor of Sream, provided that the water pipes do not require marijuana to function and therefore marijuana is not a given exposure scenario upon use of the water pipes, but an appeal was filed by EHA and further arguments were heard by the First Appellate District Court. The appellate court evaluated whether Sream’s water pipe products actually exposed consumers to marijuana smoke within the meaning of Section 25249.6 of Prop 65, which states that “[n]o person in the course of doing business shall knowingly and intentionally expose any individual to chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual”. In its decision, the appellate court cited a 1988 definition of exposure by the California Health and Welfare Agency, which stated that Prop 65 “prohibit[s] any act that directly brings a consumer into contact with a listed chemical”. The appellate court further opined that providing warnings for direct exposure to a Prop 65 listed chemical “allows consumers to make… informed choices,” and that “[r]equiring a warning for possible indirect contact, depending on how a consumer chooses to use the product, would introduce confusion into that decision-making process”. They therefore ruled in favor of Sream.
The appellate court’s written opinion will have far-reaching effects on the enforcement of Prop 65 warnings by limiting the scope of such warnings to only direct exposures. In the age in which enforcement allegations have precipitated the need for detailed warning guidance from OEHHA and additional court cases surrounding the potential for exposure based on how a product is used (i.e., warnings for potential exposure to arcylamide in cooked foods, even on items such as air fryers), this opinion will likely reduce the number of enforcement allegations in the future.
If you need help understanding your Proposition 65 obligations as they relate to selling products in the State of California, H2 Compliance is here to help. Contact us for more information.