California Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Safety Code § 25249.5 et seq.) (“Prop 65”) is a California law that prohibits any person in the course of doing business from “knowingly and intentionally expos[ing]” individuals to listed carcinogens and reproductive toxins without adequate warning. Recently, in Environmental Health Advocates, Inc. v. Sream, Inc., 83 Cal. App. 5th 721 (2022), the First District Court of Appeal had the opportunity to interpret the word “expose” as used in Health & Safety Code § 25249.6, concluding that possible indirect contact with a listed Prop 65 chemical, depending on how a consumer chooses to use a product, is insufficient to constitute a cause of action under Prop 65. 

Background

In 2020, Prop 65 private enforcer Environmental Health Advocates filed a complaint against water pipe manufacturer Sream, Inc. alleging that Sream failed to provide a warning that its water pipe products exposed consumers to cannabis smoke in violation of Prop 65. Unlike many Prop 65 cases, EHA did not allege that the water pipe itself contained a Prop 65 chemical. Rather than alleging direct contact, EHA alleged that individuals may be exposed to cannabis smoke through “reasonably foreseeable use” of Sream’s water pipe products. EHA did not allege that the water pipes can only be used with cannabis or require cannabis to function. The trial court granted Sream’s motion for judgment on the pleadings, finding that such allegations are insufficient to satisfy the exposure requirement of Prop 65, and dismissed the action with prejudice. On review, the First District Court of Appeal affirmed the trial court’s judgment.

The Court of Appeal’s Analysis

The court’s analysis differentiated between acts that directly bring consumers into contact with a listed Prop 65 chemical vs. possible indirect contact, holding that:

• Prop 65 is about protection from harmful chemicals and the ability to make informed choices. The court interpreted the term “expose” “to require a warning for any act that directly brings a consumer into contact with a listed chemical[,]” which allows consumers to make such informed choices.

• “Requiring a warning for possible indirect contact, depending on how a consumer chooses to use the product, would introduce confusion into that decision-making process. . . . Such confusion does not advance the purpose of Proposition 65.”

• The remedial nature and purpose of Prop 65 would be “stymied by an overly broad interpretation of the statute not supported by its language or governing regulations.”

• A “reasonably foreseeable use” standard does not apply.

It is too soon to know exactly how this will affect Prop 65 Notices and lawsuits going forward, but in light of the significant number of Notices that have alleged that a use of a product—as opposed to the only possible use of the product—can cause exposure, it will definitely have a significant impact.

View the Sheppard Mullin Prop 65 page for more information.