7 - Prop 65 News Documents

Transcription

PROP65
© Prop 65 News. All Rights Reserved.
1
2
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~OG~ ~0~" O OO""~ ~ ~I"" [
WILLIAM B. TURNER, Bar No. 48801
JOSEPH SANDOVAL, JR., Bar No. 9846~
311 California Street, 10th Floor
San Francisco, California 94104
Telephone:
(415) 956-2828
4
Attorneys
5
for Plaintiff
ENVIRO~ENTAL
DEFENSE
FUND
I L
E
News-15236
D 5
Fnl~l~Co~d~SLmerkw~
~0~ ,~ I ~ 9 Z /
/
MICH~LK, T A ~ , C I I r k
SY ( ~ ~
,~,.~
/-7
6
7
8
SUPERIOR COURT OF CALIFORMI~.
9
COUNTY OF SAN F R A N C I S C O
10
11
ENVIRONMENTAL DEFENSE FUND,
Plaintiff,
12
13
VS.
14
THOMPSON & FORMBY,
15
Defendant.
16
17
18
19
20
21
22
f"
"%
23
24
25
26
INC.,
Case }~o. 941282
E N V I R O N M E N T A L DEFENSE
FUND'S TRIAL BRIEF
Date: October 6, 1992
Time: 9:00 A.M.
Dept: i0
PROP65
News-15237
Iq
1
TABLE
OF
CONTENTS
2
page
3
TABLE
. . . . . . . . . . . . . . . . . . . .
ii
. . . . . . . . . . . . . . . . . . . . . .
i
OF AUTHORITIES
4
I.
INTRODUCTION
II.
SUMMARY
5
OF
RELEVANT
FACTS
. . . . . . . . . . . . . . .
2
6
A.
The
Parties
B.
Purpose
C.
The
. . . . . . . . . . . . . . . . . . . .
2
7
of
Proposition
65
. . . . . . . . . . . . .
2
. . . . . . . . . . . . . . .
4
8
Violation
of
Law
9
III.
11
THOMPSON
& FORMBY VIOLATED
PROPOSITION
65 B Y E X P O S I N G
CALIFORNIA CONSUMERS TO METHYLENE CHLORIDE WITHOUT FIRST
PROVIDING THE CLEAR AND REASONABLE
WARNING REQUIRED
BY
STATUTE
. . . . . . . . . . . . . . . . . . . . . . . .
12
A.
10
13
14
B.
15
16
C.
4
Thompson
&
Formby
Knowingly
And
Intentionally
Exposed
California
Consumers
To
Methylene
Chloride . . . . . . . . . . . . . . . . . . . . . .
5
Thompson
&
Formby
Knowingly
And
Intentionally
Exposed
Consumers
to Methylene
Chloride
Without
First Providing Clear And Reasonable Warnings.
.
7
None Of The Exceptions
To The Warning Requirement
Apply Here . . . . . . . . . . . . . . . . . . . .
13
Thompson
& Formby Has Violated,
And Continues
To
T h r e a t e n T o V i o l a t e , P r o p o s i t i o n 65 By O f f e r i n g I t s
Products
For
Sale
In
California
Without
First
Providing Clear And Reasonable Warning . . . . . . .
14
17
D.
18
19
20
IV.
RELIEF
SOUGHT
. . . . . . . . . . . . . . . . . . . . .
21
A.
Injunctive
22
B.
Monetary
Relief
Relief
23
I.
Civil
24
2.
Restitution
25
3.
Attorney
26
V.
CONCLUSION
15
. . . . . . . . . . . . . . . .
16
. . . . . . . . . . . . . . . . . .
16
Penalties
Fees
. . . . . . . . . . . .
.
. .
16
. . . . . . . . . . . . . . . . .
20
. . . . . . . . . . . . . . . .
22
. . . . . . . . . . . . . . . . . . . . . . .
-i-
24
PROP65
1
T A B L E
O F
News-15238
A U T H O R I T I E S
2
page
3
Federal
Cases
4
5
Chemical
958 F . 2 d
S p e c i a l t y M a n u f a c t u r e r s A s s o c i a t i o n , Inc. v. Allenby,
941 (9th Cir. 1992)
. . . . . . . . . . . . . .
13,
19
Cipollone
v. L i g q e t t Group, Inc.,
U.S. _ _ ,
112 S.Ct. 2608,
L.Ed.2d
(1992) . . . . . . . . . . . . . . . . .
14
6
7
8
9
S h a e f f e r v. San D i e g o Y e l l o w
462 F . 2 d 1002 (9th Cir.
Cabs,
1972)
Inc.,
9
.
.
.
.
.
.
.
.
.
.
.
.
.
6
10
California
Cases
11
12
13
A F L - C I O v. D e u k m e j i a n ,
212 Cal. App. 3d 425
(1989)
. . . . . . . . . . . . .
B e a s l e y v. W e l l s F a r g o Bank,
235 Cal. App. 3d 1407 (1991)
10-12
. . . . . . . . . . . . . .
24
14
15
16
C o m m i t t e e for C h i l d r e n ' s T e l e v i s i o n v. G e n e r a l Foods,
35 Cal. 3d 197 (1983)
. . . . . . . . . . . . . . .
C o n s u m e r s U n i o n v. A l t a - D e n a C e r t i f i e d Dairy,
4 Cal. App. 4th 963 (1992) . . . . . . . . . . .
15,
21,
22
20,
21
17
18
19
F l e t c h e r v. S e c u r i t y P a c i f i c N a t i o n a l Bank,
23 Cal. 3d 442 (1979)
. . . . . . . . . . . . . . . . .
F o l s o m v. B u t t e C o u n t y A s s ' n of Gov'ts,
32 Cal. 3d 668 (1982)
. . . . . . . . . . . . . .
.
20
.
23
2O
21
22
23
24
26
P e o p l e V. McCree,
128 Cal. App.
2d.
196
(1954)
. . . . . . . .
P e o p l e v. S u p e r i o r C o u r t (Olson),
96 Cal. App. 3d. 181 (1979),
cert. d e n i e d 446 U.S. 935 (1980)
P e o p l e V. Toomey,
157 Cal. App.
3d 1
. . . . . . .
. . . . . . . . . . . .
(1984)
15,
v. P r e s s v. L u c k y Stores,
35 Cal. 3d 311 (1983)
. . . . . . . . . . . . . . .
-
ii
-
6
19
19,
21
22,
23
PROP65
News-15239
11
1
Serrano
20
u
Priest,
C a l . 3 d 25
(1977)
. . . . . . . . . . . . . . . . . .
24
2
3
S l a y t o n v. P o m o n a U n i f . S c h . D i s t . ,
1 6 1 C a l . A p p . 3 d 5 3 8 (1984)
. . . . . . . . . . . . . .
4
State
of California
41 C a l . 3d 4 6 0
v. L e v i
(1986)
23
Strauss
& Co.,
. . . . . . . .
20,
21
5
6
7
V a s q u e z v. S u p e r i o r
4 Cal. 3d 800
Court,
(1971) . . . . . . . . . . . . . . . . . .
Woodland
H i l l s v. C i t y C o u n c i l o f L o s A n g e l e s ,
23 C a l . 3 d 9 1 7 (1978)
. . . . . . . . . . .
22
.....
22
8
Statutes
9
10
26
11
12
13
14
California
Code
w 22-12000
.
w 22-12201
.
w 22-12601
.
w 22-12711
.
.
.
.
.
of
.
.
.
.
Regulations
. . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . .
5,
. . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . .
Business
& Professions
w 17203
. . . . .
w 17206
. . . . .
w 7535
. . . . .
Code
. . . . . . . . . . . . . .
.
. . .
. . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .
6,
15,
4
9
7
14
20
18
20
15,
15
16
The
Act
17
18
19
Safe Drinking Water And Toxic Enforcement
of 1986 (Health & Safety Code)
w 2 5 2 4 9 . 5 et. s e q
. . . . . . . . . . . . . . . . . . . .
1
w 25249.6 . . . . . . . . . . . . . . . . . . . . .
3-5, 7, 8
w 25249.7
. . . . . . . . . . . . . . . . . . .
16, 18, 22
w 25249.8
. . . . . . . . . . . . . . . . . . . . . . . .
3
w 25249.10
. . . . . . . . . . . . . . . . . . . . . .
4
w 25249.11
. . . . . . . . . . . . . . . . . . . . . . .
15
w 25249.13
. . . . . . . . . . . . . . . . . . . . .
16, 18
20
Code
21
22
Final
of Civil
w 1021.5
Procedure
. . . . . . . . . . . . . . . . . . . . .
Statement
of
22 C a l i f o r n i a
Reasons,
Code of Regulations
Division
2
15,
22
8,
ii
. . . . .
23
24
Other
Authorities
25
26
Helfand
and
Archibald,
"California
Regulatory
Trend?"
in Agriculture
and
- iii
-
Proposition
Water Quality
65:
(1990)
A
New
.
.
3
PROP65
1
INTRODUCTION
I.
The Safe Drinking Water And Toxic E n f o r c e m e n t Act of 1986
2
3
(Health
4
Proposition
65,
5
an unwarned
exposure
6
products
7
under
8
products
without
9
that
of
10
News-15240
&
the
use
Safety
Code
w 25249.5
is designed
are
the
seq.),
to protect
to carcinogens.
that contain a chemical
Act,
et.
prohibited
first
will
California
Companies
known
consumers
as
from
that manufacture
identified as a known carcinogen
from
providing
product
commonly
exposing
a clear
expose
the
consumers
and
to
reasonable
consumer
to
these
warning
a chemical
known to cause cancer.
Defendant
11
Thompson
& Formby
is a major m a n u f a c t u r e r
of
12
paint stripper and wood refinishing products that it sells to the
13
consumer d o - i t - y o u r s e l f market.
14
to 80% methylene
On
15
These products contain between 60%
chloride.
April
i,
1988,
methylene
chloride
16
chemical known to the State of California
17
at
18
consumers
19
providing the clear and reasonable w a r n i n g
least
April
to
The
20
i,
its
1989,
Thompson
methylene
Environmental
in the public
&
Defense
products
been
a
Since
exposing
without
first
required by law.
Fund
("EDF")
brought
this
action
22
consumers
23
expose them to a known carcinogen and to deter other companies from
24
ignoring the will of the California people who o v e r w h e l m i n g l y voted
25
for the enactment of Proposition
be
informed
to enforce
has
as
21
to
interest
listed
to cause cancer.
Formby
chloride
was
that
their
use
the right
of California
of
products
these
will
65.
26
-
1
-
__
I
II
L
PROP65
II.
1
News-15241
SUMMARY OF R E L E V A N T FACTS
2
A.
The Parties
3
The
Environmental
Defense
Fund
is a national
not-for-
4
profit m e m b e r s h i p organization that is dedicated to the protection
5
and rational use of natural
6
enhancement
7
resources
and to the p r e s e r v a t i o n
and
of human health and the environment.
Thompson
&
Formby,
Inc.,
is
a
major
manufacturer
of
8
w a t e r p r o o f i n g compounds, paints, paint strippers and furniture care
9
and furniture refinishing products for the consumer do-it-yourself
10
market.
In
1991,
11
According
to
an
12
Washington
13
hardware
14
B.
15
Post,
it
reported
article
in
Thompson
annual
the
sales
August 23,
& Formby
of
$150
1990
products
are
million. I
edition
of
sold
35,000
in
the
stores and home centers nationwide.
Purpose of Proposition
The
People
of
margin
of
16
overwhelming
17
"protect[ing] themselves
18
birth defects,
19
w 25249.5
2O
informed
21
added).
note.
about
65
California
the
enacted
vote
with
People
exposures
the
stated
65 by
an
intent
of
. . . against chemicals that cause cancer,
or other reproductive
The
Proposition
also
to
harm."
declared
[such]
Health
their
chemicals."
& Safety Code
right
Id.
,[t]o
be
(emphasis
22
23
24 il
25
26 i
i.
Thompson & Formby is a wholly owned subsidiary of Sterling
Winthrop, Inc., a major m a n u f a c t u r e r of p h a r m a c e u t i c a l and
h o u s e h o l d p r o d u c t s with reported sales (1987) of over $2
billion.
S t e r l i n g Winthrop, Inc. is in turn a wholly owned
subsidiary of Eastman Kodak Company.
-
2
-
PROP65
The statutory
1
2
be
informed
3
that:
is the Act's
warning
that carries
out this
requirement.
right to
The Act provides
No person in the course of doing business
shall knowingly and intentionally expose any
individual to a chemical known to the state to
cause cancer or reproductive toxicity without
first giving clear and reasonable w a r n i n g to
such individual, except as provided in Section
25249.10
4
5
6
7
8
provision
News-15242
Health
& Safety Code w 25249.6.
By requiring warnings about exposures to carcinogens that
9
10
are allowed
in the marketplace
by law,
it allows
the individuals
11
consumer to choose which risks to accept and which to avoid.
This provision [of Proposition 65] does not
prohibit any use of chemicals, even if they
are carcinogenic . . . ; instead, . . . it
assumes that consumers, once informed of the
risks they face by purchasing or w o r k i n g with
a product, will make wise decisions about the
relative risks and benefits.
12
13
14
15
16
Helfand
and
17
R e g u l a t o r y Trend?" in A g r i c u l t u r e and Water Quality
The
18
Archibald,
Governor
"California
is
required
Proposition
to
publish
65:
A
New
(1990), p. 149.
a
list
of
those
19
chemicals known to the state to cause cancer.
20
w 25249.8(a).
21
opinion of the state's qualified experts,
it has been clearly shown
22
through
scientifically
according
23
accepted
principles
24
be
25
identified
authoritative
the
A
chemical
by
chemical
known
valid
to cause
the
is
testing
cancer,
state's
as
to
26
3
cause
-
cancer
if
to
in
cancer,
experts
has
or,
a
if
the
generally
if a body considered
qualified
causing
-
or,
Health & Safety Code
to
formally
state
or
i
PROP65
News-15243
1
federal agency has formally required it to be labeled or identified
2
as causing cancer.
Once
3
4
manufacturers
5
year
6
warnings.
7
of
8
25249.10(b).
9
C.
grace
that
a
Id.,
chemical
of products
period
to
is
(b).
listed
containing
adjust
and
as
those
to
a
known
carcinogen,
chemicals
devise
have
adequate
a one
consumer
The Act's w a r n i n g requirements go into effect at the end
grace
period.
Health
The V i o l a t i o n
10
subsection
&
Safety
w16725249.6
Code
and
of Law
The Thompson & Formby products that are at issue in this
11
litigation
are paint
12
dichloromethane,
commonly known as m e t h y l e n e chloride,
13
1988,
chloride
14
state to cause cancer.
15
26 California
methylene
As
16
strippers
was
that
listed
Health
i,
as
between
a chemical
60% and
80%
on April
known
to
I,
the
& Safety Code w 25249.8;
Code of Regulations
of April
contain
1989,
("CCR")
Thompson
w 22-12000.
& Formby
was
prohibited
17
from exposing California consumers to the m e t h y l e n e chloride in its
18
paint
19
with
2O
chemical
known to cause cancer.
Despite the clear mandate
21
statute,
however,
since April
22
provide consumers with the required warnings.
stripper
products,
without
a clear and reasonable
defendant
first p r o v i d i n g
warning
has,
those
that m e t h y l e n e
I,
consumers
chloride
1989,
is a
of the
refused
to
23
25
26
-
4
-
I
PROP65
1
2
News-15244
III. T H O M P S O N & FORMBY V I O L A T E D P R O P O S I T I O N 65 BY EXPOSING
C A L I F O R N I A C O N S U M E R S TO M E T H Y L E N E C H L O R I D E W I T H O U T FIRST
P R O V I D I N G THE CLEAR A N D R E A S O N A B L E W A R N I N G R E Q U I R E D BY
STATUTE
3
4
Thompson
&Formby
Knowingly
And
Intentionally
E x p o s e d C a l i f o r n i a C o n s u m e r s To M e t h y l e n e Chloride.
5
P r o p o s i t i o n 65 p r o h i b i t s a m a n u f a c t u r e r from "knowingly
A.
6
and
intentionally"
exposing
any
individual
to
a listed
7
w i t h o u t first p r o v i d i n g a clear and r e a s o n a b l e warning.
8
S a f e t y Code w 25249.6.
chemical
Health &
An "exposure" occurs w h e n a c o n s u m e r comes into contact
9
10
with
a
listed
chemical.
That
contact
can
take
11
d e p e n d i n g on h o w the p r o d u c t
12
"Expose," therefore,
13
ways that a c o n s u m e r m a y c o n t a c t a listed chemical.
various
that c o n t a i n s the chemical
forms,
is used.
is d e f i n e d b r o a d l y to e n c o m p a s s the different
The term "expose" m e a n s to cause to ingest,
inhale, contact via body s u r f a c e s or o t h e r w i s e
come
into
contact
with
a chemical.
An
individual
may
come
into
contact
with
a
chemical t h r o u g h water, air, food, c o n s u m e r
products, and any o t h e r e n v i r o n m e n t a l e x p o s u r e
as
well
as
occupational
or
workplace
exposures.
14
15
16
17
18
26
CCR
w 22-12201(f).
An
exposure
".
.
.
could
include
the
19
p u r c h a s e by an individual
of a product,
not just the c o n s u m p t i o n
2O
of that p r o d u c t . "
Final S t a t e m e n t of Reasons,
page
i0.
In this
to d e f e n d a n t ' s
products
21
case,
California
consumers
are
"exposed"
22
w h e n they p u r c h a s e and use those products.
23
T h o m p s o n & Formby "knowingly" e x p o s e d c o n s u m e r s because
24
it
knew
that
its
products
were
being
25
April
i, 1989.
26
-
5
-
sold
in
California
after
PROP65
News-15245
'j
"Knowingly" refers only to knowledge of the
fact that a discharge of, release of, or
exposure to a chemical listed pursuant to
Health
&
Safety
Code
w 25249.8(a)
is
occurring.
No knowledge that the discharge,
release or exposure is unlawful is required.
1
2
3
4
26 C C R
w 22-12201(d)
(emphasis
added).
Defendant
admits
that
it
5
sold over 92,000 units
of paint
stripper
in California
from 1989
6
through April
1992.
7
Thompson
& Formby
"intentionally"
exposed
consumers
by
8
manufacturing
a product which,
when used as intended or used in a
9
reasonably
foreseeable
manner,
exposes
consumers
to
methylene
10
chloride.
People v, McCree,
128 Cal. App. 2d. 196, 202
(1954)
("an
11
act is intentional
if the person who does it is conscious
of what
12
he is doing and its probable
consequences,
without
regard
to the
13
motive which
induced him to act.");
S h a e f f e r v.
San Diego Yellow
14
Cabs,
Inc.,
462
F.2d
1002,
1006
(gth cir.
1972)
("intentionally
15
engages in an unlawful employment practice" includes all employment
16
practices
engaged
in d e l i b e r a t e l y
rather than accidentally).
17
The evidence
will
show that T h o m p s o n
& Formby products
18
contain methylene chloride, that a consumer is exposed to methylene
19
chloride
when
he
or
she
uses
the
product
as
intended
or
in
a
20
reasonably foreseeable manner, and that T h o m p s o n & Formby knew that
21
its
products
were
being
sold
to
consumers
in
California.
22
Accordingly,
Thompson
& Formby
has
"knowingly
and
23
exposed california
consumers
to m e t h y l e n e
24
25
26
-
6
-
chloride.
intentionally"
.........
PROP65
News-15246
Q
g
2
Thompson
& Formby
Knowingly
And
Intentionally
E x p o s e d C o n s u m e r s to M e t h y l e n e C h l o r i d e W i t h o u t
First P r o v i d i n g Clear And R e a s o n a b l e Warnings.
3
A
1
B.
manufacturer
is
prohibited
from
knowingly
and
4
i n t e n t i o n a l l y e x p o s i n g c o n s u m e r s to a listed chemical w i t h o u t first
5
p r o v i d i n g a clear and r e a s o n a b l e w a r n i n g that alerts the consumer
6
that his use of the p r o d u c t will expose h i m to a chemical known to
7
the state to cause cancer.
8
w 22-12601(a).
A warning
9
H e a l t h & S a f e t y Code w 25249.6;
is "clear and r e a s o n a b l e "
26 C C R
w h e n the m e t h o d of
10
w a r n i n g is c a l c u l a t e d to make the m e s s a g e a v a i l a b l e to the consumer
11
prior
12
chemical
to e x p o s u r e
and the m e s s a g e
clearly
communicates
that
the
in q u e s t i o n is k n o w n to cause cancer.
W h e n e v e r a c l e a r and r e a s o n a b l e w a r n i n g is
r e q u i r e d u n d e r section 25249.6 of the H e a l t h
& S a f e t y Code, the m e t h o d e m p l o y e d to t r a n s m i t
the w a r n i n g must be r e a s o n a b l y calculated,
c o n s i d e r i n g the a l t e r n a t i v e m e t h o d s a v a i l a b l e
u n d e r the circumstances, to make the w a r n i n g
m e s s a g e a v a i l a b l e to the individual p r i o r to
exposure.
The
message
must
clearly
c o m m u n i c a t e that the chemical in q u e s t i o n is
k n o w n to the state to cause c a n c e r . . .
13
14
15
16
17
18
19
26 C C R
w 22-12601(a)
(emphasis added).
The e v i d e n c e will show that in m a n y instances,
20
21
were
exposed
to d e f e n d a n t ' s
22
warning
23
purchased
24
throughout
25
c a n c e r warning,
26
on the shelf w h e r e the p r o d u c t was o f f e r e d
whatsoev@~.
Thompson
the
products
Environmental
& Formby
State
of
products
California
without
Defense
at
the
Fund
numerous
without
first
w h e t h e r by a label on the p r o d u c t
-
7
-
consumers
benefit
of any
investigators
retail
outlets
receiving
itself,
any
a sign
for sale or a sign at
PROP65
1
the
cash
register where
the p r o d u c t
2
facie v i o l a t i o n of P r o p o s i t i o n 65.
was
sold.
News-15247
This
is a prima
The fact that some or even all of these p r o d u c t s might
3
4
have been shipped b e f o r e April
5
irrelevant.
i, 1989,
as d e f e n d a n t contends,
is
The p u r p o s e of P r o p o s i t i o n 65 is to p r o v i d e w a r n i n g s to
6
7
consumers
so
that
they
can
make
an
informed
8
expose t h e m s e l v e s to a known carcinogen.
choice
whether
to
The a p p r o a c h e m p l o y e d in t h e s e r e g u l a t i o n s is
intended to p r o v i d e the m a x i m u m flexibility,
while
assuring
that
warnings
satisfy
the
intent of the v o t e r s . . . to r e c e i v e w a r n i n g s
which
will
enable
them
to make
informed
choices.
9
10
11
12
13
Final S t a t e m e n t of Reasons,
p. 5.
The a p p a r e n t p u r p o s e of any w a r n i n g u n d e r the
Act is to p e r m i t the p e r s o n s e x p o s e d to m a k e
choices about the exposure.
The a r g u m e n t in
favor of P r o p o s i t i o n 65 stated:
1=1
15
16
" P r o p o s i t i o n 65 also tells businesses:
Don't expose us to any of these same
c h e m i c a l s w i t h o u t first g i v i n g us a c l e a r
warning.
We each have a right to know,
and to m a k e our o w n choices about b e i n q
exposed to these chemicals."
17
18
19
2O
I d.
at pp. 43-44.
To m a k e the c h o i c e a t r u l y informed choice,
the
21
law r e q u i r e s
that
the w a r n i n g
be given
Drior
to exposure,
i.e.,
22
prior
to
purchase
or
us~.
Health
23
24
25
26
-
8
-
& Safety
Code
w 25249.6
(no
PROP65
Q
News-15248
6
1
exposure
"without
2
(emphasis added);
first
giving
clear
26 CCR w 22-12201(f)
There is no "retroactive
3
does
not
prohibit
65
5
prohibits
exposure
6
nature.
Therefore,
7
products
8
prior to April i, 1989 is irrelevant.
9
these products
10
without
11
for violating
12
The
"shipping"
without
have
the
no
prior
fact
at
and reasonable
Proposition
evidence
because Proposition
without
prior
certain
all
warning,
of
might
the
have
been
shipped
Thompson & Formby knew that
warning.
after April
Therefore
i, 1989
it is liable
65.
will
also
show
that
some
of
defendant's
products did have a cancer warning on the container
label.
14
these
warning
15
Thompson
& Formby
16
"certain
laboratory
17
warnings are not clear or reasonable.
it
is
ever
undisputed
provided
animals."
was
that
the
only
a warning
The evidence
will
that
As to
that
referred
19
2O
21
In its Final Statement of Reasons, the Health and Welfare
Agency
(the designated lead agency for the implementation
of the Act) explained why it corrected the language "is
being exposed" in an earlier draft of the warning
regulations:
22
23
24
25
The requirement [in its earlier draft] that
the warning advise that the individual "is
being exposed" was not consistent with the
requirement under the Act that exposed
individuals receive prior warning.
If a
person "is being exposed" at the time of
warning, it is not a prior warning.
26
-
9
-
to
show that these
18
.
in
defendants'
13
products,
it
It is prospective
were being sold in California
a clear
warning.")
(definition of expose). 2
warning.
that
warnings
reasonable
liability"
4
that
and
PROP65
1
First,
to
the
make
the
method
of
warning
warning
message
was
News-15249
not
available
to
reasonably
2
calculated
the
3
prior
4
mass
5
unlikely to be read.
6
chloride
7
animals")
8
use
9
cancer.
If the consumer gets the m e s s a g e at all, the only message
10
he
receive
11
laboratory animals.
12
poses
13
cancer.
I
consumer
I
to
exposure.
of
small
In most
print
on
cases,
the
side
Secondly,
the
of
warning
the
was
container
the messaqe
(i.e.,
buried
where
in a
i
it was
that methylene
i
has
been
does
shown
not
to
cause
clearly
cancer
in
"certain
to the
communicate
laboratory
consumer
that
his
i
i
of
the
will
product
less
of
a
will
is
expose
that
him
methylene
This message
risk
to
than
a
a
chemical
known
causes
chloride
that
is
known
15
v.
animal"
16
flies
17
Agency's
argument.
Not
only
in the face of settled
interpretation
is that
argument
to
of Proposition
cause
"human
irrelevant,
case law and the Health
in
chloride
The Court should not be distracted by d e f e n d a n t ' s
14
cause
cancer
implies that m e t h y l e n e
chemical
to
it
and Welfare
65.
Proposition 65's new civil offenses focus only
on chemicals that are known to the state to
cause cancer . . . .
Chemicals that are only
suspect are not included.
18
19
20
21
A F L - C I O v,
22
from
23
between carcinogens identified from human evidence and carcinogens
24
identified
25
clearly was
26
livestock,
the
Deukmejian,
official
from
the
ballot
animal
intended
212 Cal.
App.
argument).
evidence.
to protect
suggestion
3d 425,
that
-
There
;d.
people
only
I0
-
at
is
(1989)
no
(quoting
distinction
("although
the act
and not h o u s e h o l d
pets or
known
435
436
human
carcinogens
are
I
PROP65
News-15250
1
subject to the Act ignores the plain language of Section 25249.8(a)
2
9
.")
.
The Health
3
& Welfare Agency,
4
to implement
5
makes no distinction between human or animal evidence with respect
6
to whether a chemical
65,
also recognized
that
Proposition
65
is "known to cause cancer."
Whether listed on the basis of animal or human
data, listed chemicals are known to the state
to cause cancer or r e p r o d u c t i v e
toxicity.
Health & Safety Code w 25249.8, which provides
for the listing of chemicals, does not appear
to authorize that the list d i s t i n g u i s h between
chemicals on the basis of the type of data
available . . . .
Further, the A g e n c y believes
that making such a d i s t i n c t i o n in the warning
may
create
the
incorrect
impression
that
chemicals for which only animal data exist
pose less of a risk than chemicals for which
there is human data 9
7
8
9
10
11
12
13
14
Proposition
the lead agency designated
Final Statement of Reasons,
Virtually
15
page 25.
all modern
cancer
research
depends
on animal
16
data because
it is unethical
17
availability
of
18
historical accident (e.g., shipyard workers exposed to asbestos for
19
30-40
20
identified
21
applies to those chemicals which respected scientific agencies have
22
already determined cause cancer or r e p r o d u c t i v e toxicity in humans
23
or animals 9
24
as so expressed."
years).
so-called
The vast
through
to use humans as test subjects.
"human
evidence"
majority
animal
depends
of recognized
data.
That
is why
The
entirely
carcinogens
on
were
"[Proposition 65]
Our decision simply reinforces the will of the people
AFL-CIO v. Deukmejian,
212 Cal. App.
3d at 441. 3
25
.
26,
Over 200 chemicals were listed as known carcinogens in the
wake of A F L - C I O v. Deukmejian; only 26 of which were "humanevidence carcinogens.
-
Ii
-
PROP65
Nor should
1
this
Court be d i s t r a c t e d
that the warning
argument
3
Substance
4
Proposition 65.
5
reasonable" when the method of warning makes the message available
6
to
7
communicates
8
expose him to a chemical
9
inadequacy
of the w a r n i n g approved by the Consumer Product Safety
10
Commission
("CPSC")
11
case
12
requirements
13
a
14
Proposition
the
("FHSA")
case
to
the
to
exposure
consumer
that
his
for purposes
the
use
message
of
the
cancer.
whether
the
&
Formby's
Product
Safety
warnings
meet
of
clearly
product
will
The adequacy
under the FHSA is irrelevant.
Thompson
Hazardous
65 is only "clear and
and
known to cause
of the Consumer
This
warnings
is not a
meet
Commission.
the
or
the
This
requirements
is
of
65.
Finally,
15
is "clear and reasonable"
prior
whether
about
the Federal
A w a r n i n g under Proposition
consumer
about
under
by the defendant's
2
Act
authorized
News-15251
to justify
this
Court
must
its
refusal
reject
Formby's
attempt
17
attempting to re-litigate whether the state was correct in listing
18
m e t h y l e n e chloride as a known carcinogen.
19
in EDF's
2O
Methylene
21
attempting
22
methylene
23
will
24
carcinogen
25
human
26
rejected
in Limine
Chloride
to
Not
Cause
go behind
the
state's
at
least,
has
Defendant's
in A F L - C I O
v.
Evidence
official
been
Deukmejian,
12
212
-
65 by
Exposure
to
& Formby
is
determination
subject to P r o p o s i t i o n
contention
-
That
Thompson
that m e t h y l e n e
not
Proposition
As is more fully set out
Cancer,
is a carcinogen
to put on evidence
or,
beings.
Exclude
Does
chloride
attempt
to
with
&
16
Motion
to comply
Thompson
shown
chloride
to
however,
Cal.
cause
was
App.
that
65.
is
not
cancer
It
a
in
definitively
3d 425
(1989).
PROP65
News-15252
It is not now open for defendant to attempt to re-litigate
2
the state was correct
chloride.
Its remedy
3
was to challenge the listing itself, by administrative
mandamus or
4
otherwise.
It cannot be permitted
5
assert
its violation
6
excused because
that
C.
7
in listing
methylene
whether
to ignore the listing
of the statute's
the listing
warning
and then
provisions
is
itself was in error.
None Of The Exceptions
Apply Here.
To The Warning
Requirement
8
Health & Safety Code w 25249.10 provides three exceptions
9
to the warning
requirement.
First,
there
is an exception
for "an
10
exposure
for which
preempts
state
federal
law governs
warning
in a manner
that
11
authority.
Id.
at
subsection
(a)-
The
second
12
exception
is for an exposure
that takes place
less than 12 months
13
after
the
chemical
is
listed
as
a
known
carcinogen,
i.e.,
an
14
exposure that takes place between April
I, 1988 and April
i, 1989.
15
Id.
at
subsection
(b).
The
third
exception
is
for
an
exposure
risk."
I_dd. at
16
below
the
level
deemed
to
pose
"no
significant
(c).
None of these exceptions
17
subsection
apply to this case.
18
The Federal Hazardous Substances Act only preempts state
19
mandated
"cautionary
labeling"
requirements.
Because
Proposition
20
65 does not require labels it is not expressly preempted.
Chemical
21
Specialty Manufacturers Association,
Inc. v. Allenby,
958 F.2d 941,
22
943,
949-50
(9th Cir.
1992).
23
Nor
is Proposition
65
impliedly
preempted.
Where
the
24
Congress
has
considered
the
issue
of preemption
and
included
an
25
express
preemption
clause
in the
legislation,
the
scope
of that
terms
of
26
preemption
is
governed
solely
-
-
-
_
--
• .
by
13
.
.
.
.
the
express
-
.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
i m ~
,|
,,
the
PROP65
1
preemption
clause.
, 112
2
S.Ct.
Cipollone
2608,
v.
Liggett
2617-18,
3
may not expand the preemptive
4
preemption
The second
L.Ed.2d
U.S.
(1992).
A court
reach of the FHSA under
an implied
does not apply because
all of the
that
exposures
7
April
8
Proposition
9
some or even all of the defendant's
I,
are
exception
6
April
Inc.,
analysis.
5
10
Group,
News-15253
1989.
at
issue
It
is
65 prohibits,
in this
exposure
litigation
without
not shipment.
took
prior
Therefore,
products
place
after
warning
that
the fact that
were
shipped
before
i, 1989 is irrelevant.
Finally,
1I
the
third
exception
does
not
apply
because
12
consumers who use the Thompson & Formby products as intended or in
13
a reasonably foreseeable manner,
14
far
15
significant
in
excess
the
amount
state
micrograms
or
18
significant
risk"
19
12711(a)(2).
20
who
21
methylene
22
as much as 180,000 times.
23
D.
24
the
less
has
17
use
that
the
state
deems
to
pose
"no
to
50
risk."
The
16
of
are exposed to m e t h y l e n e chloride
of
determined
methylene
and does
The evidence
Thompson
not
that
an
chloride
require
products
per
day
a warning.
in this case will
& Formby
exposure
are
poses
26 C C R
"no
w 22-
show that consumers
exposed
chloride that exceed the "no significant
to
levels
risk"
of
level by
Thompson & Formby Has Violated, And C o n t i n u e s To
Threaten To Violate, Proposition 65 By Offering Its
Products
For Sale In California
Without
First
P r o v i d i n g Clear And Reasonable W a r n i n g .
25
Although
Thompson
&
Formby
contends
that
it
stopped
26
shipping
product
to
California
-
in
14
-
early
1992,
there
are
many
PROP65
9
9
News-15254
9
1
Thompson
2
stores throughout this state.
3
are being threatened with exposure to a known carcinogen without
4
first receiving
5
required under Proposition
6
Formby has not,
to date,
7
to
California
8
Thompson
9
animals" warnings that appear on the labels of its product.
pass
& Formby
on
to
products
that
has
still
on
retail
shelves
in
So long as this continues, consumers
the benefit
& Formby
are
of the clear and reasonable
warning
65.
It is undisputed that Thompson &
offered
its customers warning materials
consumers.
ever provided
The
only
are the
warnings
"certain
that
laboratory
10
warnings are inadequate under Proposition 65.
11
& Formby
has
12
threaten
to violate
13
sale in California without first providing a clear and reasonable
14
warning.
15
IV.
not
only violated
Proposition
Proposition
Therefore,
Those
65,
65 by offering
Thompson
it continues
to
its products
for
Health & Safety Code w 25249.11(e).
RELIEF SOUGHT
The
16
remedies
provisions
Business
18
grant whatever
19
violations.
20
Cal. App.
21
these sections is extraordinarily broad.");
22
Cal.
23
injunctive relief and civil penalties.
24
w16717203 and
25
are covered by Code of Civil Procedure w 1021.5.
26
the evidence to justify the following relief:
relief
Code
are
broad,
Proposition
17
App.
& Professions
of
is appropriate
empowering
to deal
See Consumers Union v. Alta-Dena
4th 963,
3d
i,
972
19-20
(1992)
65
with
the
and
the
Court
to
the statutory
Certified Dairy,
4
("The remedial power granted under
(1984).
Both
15
-
explicitly
provide
157
for
Business & Professions Code
17535 authorize restitution.
-
People v. Toomey,
Attorneys
fees awards
Plaintiff expects
PROP65
A.
1
News-15255
Injunctive Relief
2
The
Court
should
enter
a
permanent
injunction
3
s u b s t a n t i a l l y similar to the p r e l i m i n a r y injunction entered on July
4
14,
5
prohibitory provision,
6
in California
1992.
first
The
permanent
provision,
9
still being
that
11
carcinogen.
the
use
of
The
and
reasonable
for sale
those
Court
thus
chloride-containing
requiring defendant
10
12
clear
offered
should
include
e n j o i n i n g defendant from offering
any m e t h y l e n e
providing
8
injunction
in California
products
has
will
previously
and
without
a mandatory
to seek out products
and to warn
expose
been
them
consumers
to
briefed
a
known
on
the
13
a p p r o p r i a t e n e s s of such relief and, by its grant of the preliminary
14
injunction,
15
called for in this case.
16
correctness
B.
17
has
found both p r o h i b i t o r y
a
for sale
products
warnings,
affirmatively
both
and m a n d a t o r y
injunctions
The evidence at trial will emphasize the
of these conclusions.
M o n e t a r y Relief
18
i.
19
Health
civil Penalties
&
Safety
Code
w
25249.7
authorizes
civil
2O
p e n a l t i e s of up to $2,500 "per day for each such violation."
This
21
is
I_dd.;
22
see
23
Section
24
individual
"in addition
also
Health
25249.6
to any
&
is,
other penalty
Safety
of
to a chemical
Code
course,
established
w 25249.13.
an
unwarned
A
by
law."
"violation"
"exposure"
of
of
any
known to the state to cause cancer.
25
Defendant admits that it sold a total of 92,400 units of
26
paint remover products containing m e t h y l e n e chloride in California
-
16
-
PROP65
1
from 1989 through April,
1992.
2
Response to Plaintiff's
Special
Plaintiff
3
Interrogatories. 4
imposition
one
one-
for each
unit
is
7
for, as it is based on assumptions
8
defendant.
9
sold, when in fact it is extremely likely that many more exposures
in a total of $2,310,000 in civil penalties.
favorable
11
fluid oz.)
a result
First,
from
as
defendant
it assumes
one
can,
could
reasonably
This
contend
that are extremely generous to
only one
especially
"exposure"
from
the
per unit
large
(can)
(e.g.,
128
cans.
Second,
12
$2,500
or
6
result
of
$25
sold,
may
penalty
only
5
10
statutory
of
hundredth
resulting
full
Exh. C to Defendant's Supplemental
4
as
of the
seeks
News-15256
defendant's
this calculation
products
--
ignores the substantial
still
being
offered
for
volume
13
of
sale
14
California
15
no cancer warning at all.
16
contradiction
17
without any cancer warning were p u r c h a s e d from a variety of retail
18
stores
19
evidence
justifying
mandatory
20
defendant
now to
out
long after Proposition 65 came into effect -- that have
within
that
large
the past
seek
Plaintiff's
numbers
year.
of
While
evidence will show without
Thompson
this
Formby
certainly
injunctive
such products
&
is
relief
and make
sure
products
important
(requiring
consumers
21
22
.
23
24
25
26
in
This gives defendant full credit for returns.
In other
words, the total is units sold less units returned.
This
results in a reduction in civil penalties for 1992, since
d e f e n d a n t asserts that returns exceeded sales.
This also
eliminates all units sold in 1988.
As noted infra, a
substantial amount of defendant's products shipped before
1989 was -- and p r o b a b l y still is -- being sold in
California.
Accordingly, inclusion of units sold in the
first three months of 1989 is entirely reasonable.
-
1 7
-
PROP65
adequately
warned
1
are
2
civil penalties with regard to such sales and exposures.
Third,
3
about
$2,500
them),
per
unit
plaintiff
is
the
does
News-15257
amount
not
of
also
seek
penalty
that
4
defendant
5
this
6
Defendant's
7
Defendant
8
$2,500
9
and now cannot be heard to argue that one o n e - h u n d r e d t h
10
itself used to calculate its own exposure should it lose
case.
basis
Declaration
of
Opposition to Motion
Fourth,
Business
of
13
penalties
14
sued
15
private plaintiff,
16
Court
17
states,
18
penalties.
a
to
& Professions
authorized
government
Code
by
w 17206.
both
plaintiff
civil
that
Finally,
As
statutes.
instead
noted
penalties
its penalties
Section
"violation"
Had
of,
but
-are
fortuitously,
Proposition
"in addition
w16725249.7,
25249.7
65
unit
23
the products might have been used to expose consumers.
24
here
25
defendant
26
of only one "exposure"
penalties
on
the
number
by the
of
the benefit of the e x t r a o r d i n a r i l y
for the
not
for each violation.
penalties
Thus,
18
-
it
for each
number
units
only
of days
Plaintiff
sold,
giving
generous assumptions
per unit and only one "day" of exposure.
-
a
expressly
penalties
22
these
by
to" any other
is within the Court's power not only to assess p e n a l t i e s
to m u l t i p l y
been
25249.13.
authorizes
"per day"
civil
defendant
21
only
of its own
above,
for each
seeks
82 5.
insisted on trial
2O
sold but
of
is excessive.
19
Injunction,
it would have been entirely appropriate
cumulate
twice,
support
no civil penalties will be imposed for violation
12
are
in
risk that it would have to pay
rejected settlement,
for assessing penalties
11
Miller
for P r e l i m i n a r y
simply took a calculated
for each unit sold,
by
Frederick
PROP65
1
The
Court
the
number
2
calculate
3
Toomey,
4
Court
5
U.S.
6
assumptions
7
other
8
discount.
9
concentrations
supra,
of
Not
that
factors
3d. 181,
only
are very
is
that
of the
is
number
of
violations."
against
the
198
$25
favorable
militating
One
"the
sales
to
People
v.
3d at 22; see also People v. Superior
96 cal. App.
(1980).
uses
corresponding
157 Cal. App.
(olson),
935
properly
News-15258
per
cert.
unit
giving
but
defendant
in question
carcinogen.
This
denied 446
sold
to defendant,
products
listed
(1979),
based
there
any
have
is not
on
are
greater
such
high
a case
in
10
which the carcinogen in question is present only in trace amounts.
11
Here,
12
Further,
13
of "exposures,"
14
exposure levels many thousands of times higher than that deemed to
15
pose "no significant
the
products
as
despite defendant's
on
much
as
80%
methylene
chloride.
caginess about the amount and degree
the evidence will show that normal use results
Finally,
16
contain
the
risk."
defendant
products
took
even
no
adequate
Proposition
19
labels
2O
with one warning), 5 it elected simply to ignore the Proposition
21
requirement;
22
warnings
to retailers,
23
position
that
24
instead
(and satisfying
instead
it
of
was
of checking
both
to
Proposition
sending
it simply
not
is,
in
instead
violation
see whether
on notice
of
65 and the
stickers
wrote
put
place
18
That
being
to
warnings
violations.
after
steps
17
65
them
of
products
or
of
its
changing
federal
its
CPSC
.
a letter
taking
Proposition
shipped
65;
without
See,
CSMA v. Allenby, 958 F.2d at 950 (the Proposition
safe harbor language complies with both the FHSA and
Proposition 65).
-
19
-
65
point-of-purchase
25
26
in
65
the
and
a_D~Y
PROP65
News-15259
1
cancer w a r n i n g were still being sold in California,
it ignored the
2
problem.
unit
3
justified to deal with a m a n u f a c t u r e r who u n r e a s o n a b l y
4
provide
5
that its products bearing n_oo cancer warnings
6
to consumers.
In
short,
adequate
a
civil
warnings
penalty
of
and who turned
$25
per
is
amply
refused to
a blind eye to the
fact
are still being sold
7
2.
8
Business & Professions Code w16717203 and 17535 expressly
9
authorize
Restitution
the
Court
to
order
restitution.
While
the
usual
purchaser,
where
10
restitution
11
this
12
restitution
13
consumer
14
Strauss
15
Alta-Dena
certified
16
($i00,000
in
17
office).
18
but also to ensure that a defendant does not benefit from wrongful
19
conduct.
2O
3d 442,
is
remedy
is
to
impractical
be paid
the
to
41
refunds
Court
a fund
violations.
& Co.,
make
See,
Cal.
3d
460,
4
paid
used
for
State
474
Cal.
to
each
appropriately
to be
e.g.,
Dairy,
restitution
may
to
of
remedying
California
v.
963,
971
Attorney
v.
(1992)
General's
R e s t i t u t i o n can be used not merely to make victims whole
See F l e t c h e r v. Security Pacific National
452
21
Bank,
23 Cal.
(1979).
In the instant
case
it would
be impractical
to attempt
22
to locate each consumer who p u r c h a s e d defendant's
products
23
reimburse
each
24
State
25
requests
26
Fund,
some
or
all
of California,
an
Levi
Union
Consumers
4th
that
similar
California
(1986);
App.
order
of
supra.
that defendant
independent
the
purchase
Accordingly,
be required
fund
price
20
-
plaintiff
by
the
can.
See
respectfully
to pay r e s t i t u t i o n
administered
-
of
and to
to The 65
nonprofit
Tides
I
PROP65
I
9
News-15260
J
1
Foundation
in
2
money
3
General,
local district attorneys)
4
(e.g.,
the
to
San
Francisco,
government
whose
agencies
(e.g.,
Environmental
Center,
entire
the
Environmental
6
investigate violations of Proposition 65.
7
profit
8
proceeds
of
9
case.
Plaintiff
successful
additional
11
of restitution
12
State of California,
Environmental
the
loans
enforcement
will
10
upon
The
amount
The
of
Court
such
supply
Northcoast
Fund
as
restitution
the
Court
remedy here.
within
General
17
for
18
People v. Toomeu
19
ordered).
2O
required to pay only $92,400
21
unit that it admits selling
22
warn by Proposition
23
appropriate where the Court also is awarding civil penalties.
24
Court in Consumers Union,
25
General's office,
26
seems entirely reasonable.
35 Cal. 3d 197, 220
restitution
Children's
(1983)
See
of
Court's
16
Foods,
restitution
the
purchase
for
with
supra.
15
Committee
the
the payment
discretion.
See
to
instant
14
price.
order
is
from
the
Unquestionably,
Consumers Union,
could
loan
Attorney
Foundation)
65
to such a fund is an appropriate
supra;
to
The government and non-
to
request
the
Law
actions
detail about The 65 Fund.
The
13
repay
California
Fund,
5
organizations
is
and to non-profit organizations
Defense
the
function
the
Television
full
v.
(cause of action stated
of purchase price of falsely advertised products);
supra,
Plaintiff
157 Cal. App.
respectfully
65.
3d at I0, 25-26
suggests
in restitution.
in california
that
("refunds"
defendant
be
This is $i for each
since being required to
This lesser amount of restitution may be
supra,
The
awarded $i00,000 to the Attorney
and the amount sought here is less than that and
-
21
-
PROP65
1
3.
2
If the Court grants
News-15261
A t t o r n e y Fees
of attorney
any relief w h a t e v e r
3
an award
4
for
5
clearly met.
6
parties who have enforced an important right affecting
7
interest; 6 and
8
whether or not monetary,
9
public;
such
an
award
enforcement
11
w 1021.5;
12
Cal.
under
Section
where
10
(2)
makes
3d 917,
who
Code
of
have
for.
civil
The
requirements
Procedure
for fees to
conferred
a
w 1021.5
(i) successful
the public
significant
award
and
financial
appropriate.
burden
Code
Woodland Hills v. city Council
of
of private
civ.
here has
right
the
16
v.
17
unwary
18
exigency of the utmost p r i o r i t y in c o n t e m p o r a r y society."
19
v. Superior Court,
20
people
21
exposed
22
defendant's P r o p o s i t i o n 65 violations.
23
at least 92,400 cans who were exposed to m e t h y l e n e
24
Press
benefited
to
35
from being
are
Lucky. Stores,
3d
197,
duped
3d 800,
those
methylene
protection
See Committee
Cal.
4 Cal.
to
public
exposure
to carcinogens.
public
an important
15
v.
of
enforced
the
consumers
Proc.
of Los Angeles,
14
Foods,
benefit,
23
(1978).
Plaintiff
General
are
on a large class of people or the general
necessity
the
934-35
statutory
is called
1021.5 provides
(3) the
e.g.,
13
fees also
on the merits,
who
chloride,
35
Cal.
209
by
808
have
3d
on Children's
(1983).
(1971).
been
or
the
unwarned
Television
"Protection
unscrupulous
absent
from
right:
sellers
of
is an
Vasquez
The large class of
are
likely
injunction
to
be
against
They include the buyers of
311,
321
n.10
chloride.
(1983)
Cf.
(3000
25
.
26
Proposition 65 itself provides that citizen suits are, by
definition, "in the public interest."
w 25249.7(d).
-
22
-
PROP65
News-152
m~
1
people
sufficient);
2
App.
3
sufficient).
3d
538,
552
Further,
4
SlaytQn v. Pomona Unif.
(1984)
the
(900
students
vindication
of
the
5
free from unwarned exposure to carcinogens
6
products
7
California's
8
Stores,
9
or small
benefits
the
public
in
economic marketplace
supra,
35 Cal.
group's
to
~o!som v. Butte County Ass'n of Gov'ts,
11
(vindication
12
Transportation
The
13
one
county
of
by
benefits
of one person's
general
32 Cal. 3d 668, 684
legislative
intent
element
of
"the
also
financial
16
action
17
agency,
without
the
to protect the public
Court
need
met
and
organization dedicated to protecting the environment,
own,
is
necessity
15
The
here.
EDF,
participation
not
determine
21
parties will be able to settle the amount without
22
to the
23
plaintiff
24
appropriately
26
the
If
to
file
a motion
documented,
fees
and
it
is
are unable
in
which
the
Court
very
to
of
brought this
hours
-
23
of
government
attorneys
its
can
fees
then
times hourly
-
likely
that
the
further resort
settle
It is well established
(actual
burden
Once the Court has determined
fees,
the parties
to be awarded.
"lodestar"
behind
non-profit
any
amount
plaintiff's
amount
at this point.
the
2O
will
(1982)
from dangerous products.
fees to be awarded
entitlement
a
of
19
Court.
public);
Development Act benefits the general public).
enforcement"
18
to be
Of. Press v. Lucky
private
its
right
strengthening
14
on
parents
by sellers of consumer
(vindication
free speech
161 Cal.
their
public's
general
10
of
and
as a whole.
3d at 323-24
right
Sch. Dist.,
the
and
amount,
costs
are
determine
the
in California
rates)
that
are to be
62
PROP65
1
e n h a n c e d in cases of this kind to reflect,
2
n o n p a y m e n t if the case is u n s u c c e s s f u l
3
Cal.
3d 25,
4
App.
3d 1407, 1418-19
5
All that the Court need do after trial
6
entitled
7
any further Court i n v o l v e m e n t in this matter.
8
V.
to
48-49
(1977);
recover
News-15263
inter alia, the risk of
(see S e r r a n o v. Priest,
B e a s l e y v. W e l l s
Farqo
Bank,
235 Cal.
(1991)), but m a t t e r s such as these can wait.
its
fees,
is find that p l a i n t i f f
and t h e r e m a y be no n e c e s s i t y
is
for
CONCLUSION
The c o n c e n t r a t i o n s of m e t h y l e n e c h l o r i d e in d e f e n d a n t ' s
9
10
products
11
c a r c i n o g e n that C a l i f o r n i a c o n s u m e r s are likely to face.
12
reason,
13
exposure
14
e n c o u n t e r this risk.
represent
one
of
the
highest
exposures
-- so that
16
will
17
Proposition
18
unpunished.
they can m a k e an
informed
& Formby d e l i b e r a t e l y
judgment
a
known
For this
65.
For
all
in
its
This
conduct
of these
favor
should
reasons,
permanently
21
22
23
24
25
26
-
24
-
not
EDF
choice w h e t h e r
ignored the
of the People who o v e r w h e l m i n g l y v o t e d
19
to
it is v i t a l l y important that c o n s u m e r s be w a r n e d -- before
Thompson
15
20
20
to
law and the
for the e n a c t m e n t of
--
must
respectfully
enjoining
not
--
requests
defendant
go
a
from
.4,
Proposition
65,
assessing
D
News-15264
I
violating
2
disregard of the law, ordering restitution and awarding attorneys
3
fees to EDF.
4
Dated:
September 26, 1992
penalties
PROP65
ROGERS, JOSEPH,
for its egregious
O'DONNELL & QUINN
5
By:
6
Joseph Sandovali Jr.
Attorneys for Plaintiff
ENVIRONMENTAL DEFENSE FUND
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
-
IIII
I _[
.
..........
~,'
":
-
25
-
PROP65
News-15265

7 - Prop 65 News Documents

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