F IL.SD - Prop 65 News Documents

Transcription

PROP65
© Prop
65 News. All Rights Reserved.
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News-26570
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IL.SD
F
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J O H N K. V A N D E
KAMP, A t t o r n e Y G e n e r a l
San Frsncisco Count
~rior Coutf
of the S t a t e of C a l i f o r n i a
/
ANDREA SHERIDAN ORDIN
Chief A s s i s t a n t A t t o r n e y G e n e r a l
T H E O D O R A BERGER, A s s i s t a n t A t t o r n e y G e n e r a l
C R A I G C. T H O M P S O N
CLIFFORD RECHTSCHAFFEN
E D W A R D G. W E I L
Deputy Attorneys General
MICROPHOTOCOPIED .
350 M c A l l i s t e r Street, R o o m 6000
San F r a n c i s c o , C a l i f o r n i a
94102
Telephone:
(415) 5 5 7 - 8 9 6 3
A t t o r n e y s for P l a i n t i f f s
8
S U P E R I O R C O U R T OF THE S T A T E OF C A L I F O R N I A
9
C O U N T Y OF SAN F R A N C I S C O
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ii
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No.
P E O P L E OF T H E S T A T E OF CALIFORNIA,
ex rel. J O H N K. V A N DE KAMP,
A t t o r n e y G e n e r a l of C a l i f o r n i a ,
13
Pl~intiffs,
HEREIN
S A F E W A Y STORES,
NT A S
TO
AS
BENSON
INTERNATIONAL); BROWN &
WILT.IAMSON T O B A C C O
CORPORATION; DOUWE
EGBERTS TABAKSMAATSHAPPIJ, B.V. (SUED H E R E I N
AS DOUWE EGBERTS); LANE
LIMITED; LARUS AND
B R O T H E R C O M P A N Y (SUED
HEREIN AS LARUS AND
B R O T H E R CO., INC. ) ;
L O R I L L A R D , INC. ; J O H N
M T D D L E T O N , INC.; T H E
P I N K E R T O N T O B A C C O COMPANY; R E P U B L I C T O B A C C O
COMPANY; SWEDISH
TOBACCO COMPANY;
TOBACCO EXPORTERS
I N T E R N A T I O N A L (U. S.A. )
LTD. ; R O Y A L T H E O D O R U S
N I E M E Y E R B.V. (SUED
HEREIN AS ROYAL
FACTORIES ); NATIONAL
T O B A C C O C O M P A N Y L.P.
(SUED H E R E I N A S DOE i);
UNITED STATES TOBACCO
COMPANY
INC., et al.,
15
Defendants.
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r
-<
3~
JUmm
(USA), INC. (SUED
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:~
STIPULATION FOR ENTRY
O F JUDCaWRNT A N D
"DEFENDanT,S T H E A M E R I C A N
TOBACCO COMPANY; BIT
V.
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897576
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PROP65
© Prop 65 News. All Rights Reserved.
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Q
1.0
News-26571
Introduction
On September
30,
3
California,
4
Complaint
5
("Complaint")
6
American
7
International);
8
Egberts Tabaksmaatshappij,
9
Lane Limited:
1988,
the People of the State of
ex rel. John K. Van de Kamp,
for Civil Penalties,
BIT
Superior Court,
(USA),
Brown & Williamson
B.V.
Inc.
naming
Relief
The
(Sued herein as Benson
Tobacco Corporation;
Douwe
(Sued herein as Douwe Egberts);
Larus and Brother Company
(Sued herein as Larus and
i0
Brother Co.,
ii
Pinkerton Tobacco Company;
12
Tobacco Company;
13
Royal Theodorus
14
United States Tobacco Company
("Judgment Defendants")
15
National
(Sued herein as Doe i), among
16
others,
17
Inc.); Lorillard,
filed a
Injunctive and Declaratory
in San Francisco
Tobacco Company;
("People")
Republic Tobacco Company);
Tobacco Exporters
Niemeyer B.V.
Tobacco Company L.P.
The Complaint
Swedish
(U.S.A.)
Ltd.;
(Sued herein as Royal Factories);
is based on allegations
18
Notice of Violation
19
General by the Environmental
Resources
21
August
22
25249.7
23
Exhibit A.)
24
International
Inc.; The
and
as defendants.
I.i.
20 N a t u r a l
Inc.; John Middleton,
("Citizen Notice")
(d).
1.2.
and campaign California
25
more than ten persons
26
tobacco products
the
on
to Health and Safety Code section
(A copy of the Notice of Violation
Each Judgment
in a
sent to the A t t o r n e y
Defense Fund, the Sierra Club,
Defense Council,
2, 1988, pursuant
contained
Defendant
is attached
is a corporation
and manufactures,
imports,
that employs
or distributes
for sale within the State of California.
27
.
as
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6572
The complaint alleges that defendants violated
2
provisions of Proposition 65, Health and Safety Code sections
3
25249.5 et seQ., and the Unfair Competition Act, Business and
4
Professions Code sections 17200 et seQ.
5
Act"), by knowingly exposing persons to certain tobacco products,
6
including cigars and pipe, "roll-your-own" a n d o t h e r
7
tobaccos, which contain/produce chemicals known to the State of
8
California to cause cancer and reproductive harm, without first
9
providing a clear and reasonable warning to such individuals.
i0
1.4.
("Unfair Competition
smoking
This Stipulation for Entry of Judgment and Judgment
ii
set forth the terms required by the People, after investigation,
12
to resolve the Complaint, and all matters raised in the August 2,
13
1988 Citizen Notice, as to the Judgment Defendants, who hereby
14
accept the entry of this Judgment.
15
Q
1.3.
PROP65
1.5.
For purposes of this Judgment the parties stipulate
16
that this court has jurisdiction over the allegations of
17
violations
18
over Judgment Defendants,
19
San Francisco,
2O
Judgment as a resolution of the allegations contained in the
21
Complaint.
22
1.6.
contained in the Complaint and personal
jurisdiction
that venue is proper in the County of
and that this court has jurisdiction to enter this
The parties enter into this Judgment pursuant to a
23
settlement of disputed claims between the parties for the
24
purpose of avoiding prolonged litigation and to insure that the
25
objectives of Proposition 65 are expeditiously carried out.
26
execution of this Order, Judgment Defendants do not admit any
27
violations of Proposition 65 or the Unfair Competition Act.
3.
F~
By
PROP65
1
Nothing
2
Judgment
3
law, nor shall compliance with the Judgment
4
construed
5
issue of law, or violation
6
shall prejudice,
7
Judgment
8
proceeding.
9
otherwise
Defendants
of any fact,
as an admission
issue of law or violation
of law.
this paragraph
affect the obligations,
Defendants
ii
results of any further proceedings
12
other defendants
Defendants
15
assert that these actions
16
requirements
17
Competition
18
determined
19
this Judgment,
it is appropriate
2O
these Judgment
Defendants,
21
reimburse
certain actions
22
will be provided
of section
Act.
and duties of
neither shall the
in this matter against any
to provide warnings.
constitute
of the
They
compliance with the
25249.6 of Proposition
65 and Unfair
The People have reviewed these actions
under the circumstances,
the People
2.0.0.
or
prior to the commencement
action undertook
24
legal
affect this Judgment.
14
2.
remedy or defense
shall not diminish
under this Judgment;
Judgment
that,
or be
in this Judgment
responsibilities
Judgment
23
Nothing
of
of any fact,
m a y have in any other or further
However,
1.7.
constitute
by Judgment Defendants
waive or impair any right,
Defendants
6573
shall be construed as an admission by
i0
13
-
in this Judgment
News-2
and have
and in conjunction with
not to impose penalties
but that Judgment
Defendants
against
must
for certain costs and that injunctive
relief
as set forth herein.
Injunctive
Relief:
By this Judgment,
Tobacco products.
each Judgment
25
to and shall comply with the provisions
26
Unfair Competition
27
containers
Act by placing
as specified
herein.
Defendant
is ordered
of Proposition
65 and the
a warning
on retail
This requirement
4.
packages
or
shall apply to
PROP65
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tobacco products manufactured
2
Defendants
3
requirements
4
products
2.0.0 through
Defendants
shall take all reasonable
7
ordinary packaging
and distribution
8
on retail packages
or containers
9
practicable.
warning
isLrequired.
steps consistent
practices
agree that they are solely
ii
Judgment
12
in the case of imported packaged Tobacco Products,
13
at the direction
14
without
15
date this Judgment
16
17
2.1.
shallbe
with
to place warnings
for placing the warning on the products.
Tobacco Products
However,
shall not be packaged,
of Judgment Defendants
these warnings
Judgment
as specified herein as soon as
Judgment Defendants
Defendants'
The
2.6 shall not apply to
Immediately upon entry of this Judgment,
6
i0 r e s p o n s i b l e
-
("Tobacco Products").
for which a federally-mandated
2.0.1.
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6574
or imported by the Judgment
for sale in California
of sections
News-2
shipped,
or
by or
for sale in California
after the expiration
of 150 days from the
is entered.
The language of the warning required
by this
judgment
as follows:
18
WARNING:
This Product Contains/Produces
Chemicals Known To The State Of California
Cause Cancer, And Birth Defects Or Other
Reproductive Harm
19
To
2O
21
2.2.
Notwithstanding
the provisions
22
event a different warning message
23
required
24
authority
25
sold,
26
warning
27
provided
by any federal,
required
2.1, in the
is required or proposed
to be
or other state or local governmental
in which a Judgment
such Judgment
of section
Defendant's
Tobacco
Products
Defendant may modify the language
by this section to accommodate
that the modified message
5.
complies
are
of the
such requirement
with Proposition
65,
PROP65
1
and that such Judgment
2
and the Environmental
3
which provided
4
advance of labeling products with the modified message.
5
Attorney General
believes
6
with Proposition
65, he m a y take action pursuant
7
of this Judgment.
8
2.3.
9
displayed
Defendant
Defense
Fund on behalf of the entities
the Citizen Notice,
The warning
in writing at least
90 days in
If the
that the new message does not comply
required by this Judgment
in a clear and reasonable manner.
to Paragraph
It shall appear on
ii
are sold; provided,
12
individually,
or loose tobacco sold in bulk,
13
or containers
supplied by a Judgment Defendant,
14
be placed on the display box or container so that the warning
surface of retail packages
however,
16
that box or container.
17
means a pack,
box,
18
which Tobacco
Products
19
distributed
20
wrappers,
21
are sold and does not include shipping
22
containers
2.4.
24
superseded
25
exemption
26
27
Products
sold
from d i s p l a y boxes
the warning
removing products
shall
can
from
the term "retail package"
pouch or container of any kind in
are offered for sale, sold or otherwise
to consumers
but does not include cellophane
tubes or similar wrappings
not normally purchased
The requirements
by any future
in which individual
federal
cigars
cartons or other
by consumers.
of sections
set forth in section
2.5. Within
Defendants
As used herein,
carton,
in which Tobacco
that with respect to cigars
ordinarily be read by retail customers
7
shall be
the outside
23
6575
notifies the Attorney General,
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2.0 through
law which satisfies
25249.10(a)
2.6 shall be
the
of Proposition
45 days of the entry of this Judgment,
shall cause to be published warnings
65.
Judgment
in newspaper
6.
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PROP65
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advertisements.
2
content and shall be in the same format and general location in
3
the same newspapers as those published on February 27, May 26,
4
and August 26, 1988, by said Judgment Defendants pursuant to
5
Proposition 65.
6
implemented the requirements of subsection 2.0 of this Judgment,
7
said Judgment Defendants shall continue to provide shelf signs
8
and wall signs, copies of which are attached as Appendix B to
9
this Judgment,
These advertised warnings shall have the same
Until such time as Judgment Defendants have
to California retailers of Judgment Defendants'
i0
products who request them.
ii
entry of this Judgment,
12
sent a letter to each distributor of its Tobacco Products in
13
California,
14
has previously provided with warning signs advising them that
_15
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News-26576
In addition, within 14 days after
each Judgment Defendant shall cause to be
and to each retailer that said Judgment Defendant
additional signs are available without charge.
The People agree
16
that compliance with this paragraph constitutes compliance with
17
Proposition 65 for the specific products covered by this Judgment
18
during the 150-day period following the date of entry of this
19
Judgment.
20
2.6.
Judgment Defendants will not rely on any toll-free
21
information service to provide the legally required warnings
22
Tobacco Products under Proposition 65.
23
2.7.
Nothing in Subparagraphs
24
to Judgment Defendants Lorillard,
25
Company,
26
Products for sale in California,
for
2.0 through 2.6 shall apply
Inc. and The American Tobacco
unless and until they manufacture or import Tobacco
other than those for which a
27
.
PROP65
1
federally-mandated
2
provisions
3
4
5
warning
in which case those
shall apply with full force and effect.
3. Payments
3.0. Judgment
by Defendants
Defendants
$75,000 to reimburse
providing
is required,
shall
jointly pay a total of
the People of California
and the parties
the People with the above-referenced
Citizen Notice
for costs incurred by the People in investigating,
resolving
the action.
lafter the court enters
filing and
These funds shall be paid within
this
30 days
Judgment by delivery of certified
i0
funds payable to the A t t o r n e y General of the State of California
ii
Ln the amount of $37,500,
and separate certified
12
amount of $37,500 payable
to the Environmental
13
Inc., on behalf of the entities which provided the Citizen
14
Notice,
15
16
"
News-2 6577
to the Office of the Attorney General,
California.
Judgment Defendants
funds in the
Defense
Fund,
San Francisco,
shall be jointly and severally
liable for payment of said costs.
17
4.
18
4.0. The People and Judgment
Entry of Judqment
Defendants
hereby request
that
19
the court promptly enter the Judgment which appears
20
document.
Provided
21
Defendants
waive their right to a hearing or trial on the
22
allegations
23
agree that this Judgment will not be binding on any party hereto
24
unless and until this Judgment
25
26
27
of the Complaint.
5.
5.0.
Judgment
the court enters the Judgment,
Matters
Judgment
The People and Judgment
Defendants
is entered.
Covered by this Judqment
This Judgment
Defendants
in this
is a full and final
only applying
judgment
to all claims,
as to these
violations,
PROP65
1
actions, damages,
2
Section
3
up to and including the date of entry of this Judgment,
4
from exposure to Judgment Defendants'
5
9
costs, penalties or causes of action under
25249.6 of Proposition 65 and the Unfair Competition Act
5.1.
arising
Tobacco Products.
The People hereby release Judgment Defendants,
directors,
officers, employees,
idivisions,
subdivisions,
successors
agents,
parents,
their
affiliates,
subsidiaries and suppliers,
and the
or assigns of any of them from all claims,
violations,
actions, damages,
costs, penalties,
or causes of
I0
action set forth in section 5.0.
Ii
condition their acceptance of this Judgment on the understanding
12
that it resolves all
13
section 5.0.
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_15
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News-26578
5.2.
Judgment Defendants expressly
allegations and claims set forth in
This Judgment, however, does not affect the People's
rights against any retailer or other person or entity not a party
16
to this Judgment,
17
Tobacco Products.
18
against other defendants not a party to this Judgment shall not
19
include penalties that are attributable
20
of the Judgment Defendants.
21
6.
or concerning the sale of products other than
However,
any penalties
sought or awarded
solely to the liability
Additional Enforcement Actions
22
6.0.
23
Judgment,
24
further enforcement actions on any new or additional
25
not covered by the Judgment,
26
otherwise released by sections 5.0 and 5.1.
By entering into this Stipulation
for Entry of
the Attorney General does not waive his right to take
complaint,
or 60-day notice,
27
.
violations
-
and not
PROP65
1
2
7.
7.0.
of Judqment
The Attorney General,
on behalf of the People,
may, by
3
motion or order to show cause before the Superior Court of San
4
Francisco County,
enforce
5
herein,
the payment of costs pursuant
6
In any action brought by the Attorney General
7
Judgment,
the Attorney General may seek whatever
8
penalties
or remedies
including
9
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Enforcement
News-26579
8.
8.0.
the terms and conditions
Modification
fines,
this
costs,
This Judgment may be modified upon written approval
12
modified
13
Attorney General
14
given to all signatories
15
Judgment who are manufacturers
16
and to the Environmental
17
parties providing
18
entry of a modified
and Judgment defendants
Judgment by the court thereon,
19
9.
9.0.
of Tobacco
Products
of all of the
Judgment by the court thereon.
of Judqment
shall apply to and be binding
22
agents,
23
subsidiaries
24
of them.
10.0.
or importers
the Citizen Notice as provided by law and upon
This Judgment
their directors,
affiliates,
and suppliers,
i0.
or upon motion of the
Defense Fund on behalf
People and each defendant,
25
and upon entry of a
to this Judgment or any other related
Application
parents,
of
or a Judgment Defendant with notice previously
21
27
to enforce
3.
of Judqment
the Attorney General
26
to Section
are provided by law.
Ii
2O
contained
Authority
employees,
subdivisions,
and the successors
to Stipulate
Each signatory
she is fully authorized
divisions,
officers,
upon the
or assigns
of any
to this Judqment
to this Judgment
certifies
that he or
by the party he or she represents
to
PROP65
1
enter into and s t i p u l a t e
2
behalf
of the p a r t y r e p r e s e n t e d
ii.
3
4
5
to t h i s
11.0.
to implement
Retention
This Court
Judgment
to e x e c u t e
News-26580
it on
and legally to bind that party.
of J u r i s d i c t i o n
shall retain
jurisdiction
of this m a t t e r
the Judgment.
JOHN K. VAN DE KAMP, A t t o r n e y General
of the State of C a l i f o r n i a
A N D R E A SHERIDAN ORDIN
Chief A s s i s t a n t A t t o r n e y G e n e r a l
THEODORABERGER
Assistant Attorney General
CRAIG C. T H O M P S O N
CLIFFORD RECHTSCHAFFEN
EDWARD G. W E I L
Deputy A t t o r n e y ~ General
6
7
8
9
i0
ii
By:
EDWARD G. Wg/IL
Deputy A t t o r n e y G e n e r a l
A t t o r n e y s for P l a i n t i f f s
12
13
14
THE ~ E R I C A N
TOBACCO CO,ANY
BIT (USA), INC. (SUED H E R E I N AS
BENSON INTERNATIONAL)
BRO~
& WILLI~SON
TOBACCO CORPORATION
DONE
EGBERTS T ~ S M A A T S H A P P I J ,
B.V.
(SUED HEREIN AS D O N E
EGBERTS)
LANE L I M I T E D
LARUS ~ D BROTHER C O M P A N Y (SUED H E R E I N
AS LARUS ~ D
B R O T H E R CO., INC.)
LORILLARD, INC.
J O ~ MIDDLETON, INC.
R E P U B L I C TOBACCO C O ~ Y
THE P I ~ E R T O N T O B A C C O C O ~ Y
S W E D I S H TOBACCO C O , A N Y
T O B A C C O EXPORTERS I N T E R N A T I O N ~
(U.S.A.)LTD.
ROY~
THEODORUS N I ~ E Y E R
B.V. (SUED
HEREIN AS R O Y ~
FACTORIES)
NATION~
TOBACCO C O M P L Y
L.P.
(SUED H E R E I N AS DOErl )
UNITED
-15
16
"
17
18
19
20
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22
STATES.TOBAC~Y
23
24
25
DATED :
26
27
BY: < e ~ v i ~
Dunne
SEDGWICK, DETERT, M O R A N ~ D ~ N O L D
Attorneys for J u d ~ e n t
Defendants
PROP65
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News-26581
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'... 5"
~. :<*:.:~" " . ~ , . :: . . . .
ENVIRONMENTAL DEFENSE FUND""
Rockridgr Market Hall
5655 College Avenue
Oakland, CA 94618
(415) 658-8008
A u g u s t 2,
1988
60-DAY NOTICE:
FAILURE TO WARN ABOUT TOXIC CHEMICAL EXPOSURE
Health and Safety Code Section 25249.6 (Proposition 65)
The Attorney General
State of California
The City Attorney
City of Los Angeles
City of San Diego
City of San Francisco
The District Attorney
Alameda Co.
Contra Costa Co.
Los Angeles Co.
Sacramento Co.
San Diego Co.
San Francisco Co.
San Marco Co.
Yolo Co.
RE: Exposures to non-cigarette tobacco products
sold through retail supermarkets
(Invalidity of 800-number "information zystem")
Dear Attorney General, District Attorneys~
and City Attorneys:
Q
W
National Headquarters
257 Park Avenue South
New York, NY I0010
(212) 505-2100
1616 P Street, NW
Washington, DC 20036
(202) 387-3500
1405 Ayapaho~ Avenue
Boulder, C O 80302
(303) 440-4901
! 108 East Main Street
Richmond, VA 23219
(804) 780-1297
128 East Harg~tt Street
Raleigh, NC 27601
(919) 821-7793
This letter notifies you of violations of Health and
Safety Code Section 25249.6, the warning requirement of
Proposition 65. The particulars are set forth below. You
may bring an action to enforce the law under Heal~h and
Safety Code Section 25249.7(c).
This represents the first major enforcement action
undertaken under Proposition 65. It covers a large number
of current and potential violations Involvlng over two
hundred individual brand-name tobacco products, major
national tobacco manufacturers, and major California retail
chains, with estimated potential maximum liability in
excess of $1.3 billion.
This action is also intended as a direct challenge to
the validity of a purported warning system for consumer
products that is now being offered throughout California,
specifically the toll-free "information system"
(800 number) sponsored by the Grocery Manufacturers of
America and affiliated entities, and operated by the
Ingredient Communication Council, Inc. (800-431-6565).
The 800 number is no substitute for genuine warnings to
consumers, and relying on it gives no protection against
liability under Proposition 65.
f~
R .~ y< k'd P J ~
EXHIBIT A
PROP65
News-26582
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9 '"
"2-'.i*9
When the invalidity of the 800-number system as currently operated is
established, it will be clear that warnings for the few consumer products that
exceed state-set limits for known carcinogens and reproductive toxins under
Proposition 65 must be given on an individual basis at point of sale,
replacing the generalized and misleading notice now posted in store windows
throughout the state which purports to cover all products including the vast
majority .for which no warning is required, and which fails to inform the
average consumer as to which products, if any, are actually subject to t h e
warning requirement.
Pursuant to Health and S~fet 7 Code Section 25249.7(d), this notice is
being given to the Attorney General, DistrictAttorneys, and City Attorneys as
indicated, and to the violators, at the addresses shown in the attached proof
of service. A courtesy copy is also being sent to the Grocery Manufacturers
Association, the Ingredient Communication Council, Inc., the California
Retailers Association, and the California Grocers Association.
Sixty days from the date of this letter, the undersigned may bring an
enforcement action or actions by direct citizen suit under Health and Safety
Code Section 25249.7(d).
STATKM~NT OF P A R T I C U ~
The violations consist of the following:
Q
..
.e
t.
60-Day Notice to Prosecutors
August 2, 1988
Page 2
Individuals throughout the State of California are being exposed to known
carcinogenic and/or reproductively toxic chemicals through the use of
non-clgarette tobacco products, including cigars, little cigars, pipe tobacco,
and loose cigarette tobacco.
Each individual product covered by this notice,
together with the name of the manufacturer, is listed in Attachment A. This
notice does Dot cover any manufactured cigarette product and does not
cover any tobacco product bearing a federal warning pursuant to 15 U.S.C. 9
1333(a) or 15 U.S.C. 4402(a).
On or after July 15, 1988. every one of the products listed in Attachment
A was observed by flrst-hand witness to be offered for retail sale in
California, without adequate warning, on the shelves of individual stores of
one or more of the retail market chains listed in Attachment C; and every one
of the retail chains listed in Attachment C was offering one or more such
pr~d,,r
for sale to consumers without adequate warning.
Individuals exposed. The individuals exposed are each and every
consumer of the non-clgarette tobacco products listed in Attachment A, as well
as all other persons exposed or reasonably anticipated to be exposed to such
items and their combustion products in a manner exposing them to one or more
of the chemicals listed in Attachment B. Such persons include breathers of
so-called "sidestream smoke" and "secondary smoke" from the products listed i~
Attachment A.
-
PROP65
News-26583
August 2, 1988
Page 3
I
i
Identity of Chemicals. Tobacco smoke contains more than 3800 chemical
constituents, many of which are implicated in the causation of cancer and/or
reproductive toxicity.
The most useful summary of the extensive scientific
literature is vol. 38 of the fARe Monographs on the Evaluation of ~he
CarcinoEenic Risk of Chemicals to H,,m~ns, entitled "Tobacco Smoking" (IARC,
Lyon, France: 1986); see ch. 3, "composition."
The Governor's Science Advisory Panel has recommended and the Governor
has listed "Tobacco smoke" as a chemical known to the state to cause both
cancer and reproductive toxicity, pursuant to Health and Safety Code
Section 25249.8(a). A number of the individual chemical constituents of
tobacco smoke have been similarly listed. For purposes of this notice at this
time, the relevant chemicals are those which were listed more than 12 months
prior to the date of this notice, i.e., those for which the warning
requirement of Proposition 65 is presently in effect. These include chemicals
formally listed on either February 27, 1987, or July i, 1987, as indicated in
22 CCR Section 12000.
The relevant chemicals, each of whlch is contained in
tobacco smoke, are indicated in Attachment B, together with date of listing
for each.
Q
i
Identity of violators.
The p e r s o n s r e s p o n s i b l e
for the exposures
covered by this notice, within the meaning of Proposition 65, are the
..K:
manufacturers of each product listed in Attachment A and the retail s e l l e r ~ o f
each such product.
The manufacturers are indicated in Attachment A. The
retail sellers named in this notice are indicated in Attachment C. Other
persons in the chain of distribution of such products may also be legally
responsible but are not covered by this notice at this time.
Duration of violations. For the chemicals in Attachment B that were
listed on February 27, 1987, unlawful exposures as indicated have been
occurring on each day beginning February 27, 1988, and continuing through the
present.
For the chemicals listed on July I, 1987, unlawful exposures have
been similarly occurring since July 1, 1988. Under Proposition 65, each day
of exposure to each such product by each violator <or, alternatively, each
individual sale of each such product) constitutes a separate violation.
Health and Safety Code Section 25249.7(b).
The maximum civil penalty for
each such violation is $2500.
Id.
Absence of clear and reasonable warning. None of the products covered
by this notice bears any label or other indication on the package in which it
is offered for retail sale that such product exposes persons to chemicals
known to the State of California to cause cancer or reproductive toxicity.
In
addition, none of the same products in the stores covered by this notice was
offered for sale with any shelf label bearing any such warning with regard to
such products.
No other adequate warning information was available at or near
the point of sale for any of the indicated products at any of the indicated
stores.
PROP65
#
News-26584
--
L-,.-,
r
.
9
.
.
:
<
August 2, 1988
Page 4
All products indicated by an asterisk in Attachment A are listed with the
800-number system operated by the Ingredient Communication Council, Inc.; and
the persistent and diligent caller m~y eventually receive a recorded warning
message for each such product if he or she calls the 800 number and is
sufficiently precise in requesting information.
The text of this message is
reproduced in Attachment D. However, this information is not available in
conjunction with the product when offered for sale, is not available within
the store, is not available in printed form, and is not otherwise available.
Moreover, no llst of products associated with such message is available as
part of the Ingredient Communication Council's 800-number "information
system," even on request; no llst of covered tobacco products is available;
and no caller who requests information on "cigars," "pipe tobacco," "cigarette
tobacco," "tobacco," or "tobacco products" receives any such message.
None of the foregoing constitutes clear and reasonable warning within the
meaning of Health and Safety Code Sections 25249.6 and 25249.11(f).
Specifically, the 800 number currently in operation fails to provide clear and
reasonable warning to consumers.
By contrast, in some stores in California, non-cigarette tobacco products
including those listed in Attachment A are offered for sale in proximity to
large, clearly worded shelf signs which state:
Warning:
Q
Pipe and smoking tobaccos and cigars
contaln/produce chemicals known to the State of
California to cause cancer, and birth defects or
other reproductive harm.
Individual stores displaying this shelf sign are not included within this
60-day notice.
In addition, all manufactured cigarettes sold in California bear clearly
worded warnings on each package and in all advertising which, inter alla,
state: "Smoking Causes Lung Cancer .
. A~nd Hay Complicate Pre~nancy.Knowing and intentional exposure. All exposures covered by this
notice are both knowing and intentional on the part of both manufacturers and
retail sellers.
On or about March 15, 1988, manufacturers and/or distributors
of non-clgarette tobacco products provided clearly worded shelf signs, as
described above, to stores of each of the retail chains indicated in
Attachment C. Each such retail chain chose not to display such shelf signs in
the stores covered by this notice.
The preparation of the shelf signs with
the message indicated above clearly establishes knowledge and intentional
exposure on the part of manufacturers: and the receipt of such signs clearly
establishes knowledge and intentional exposure on the part of the retail
sellers.
PROP65
,9
.
News-26585
...
"- .~760-Day Notice to Prosecutors
August 2, 1988
Page 5
Because of the importance of this action, and because of the previously
expressed view of the Attorney General's office that the 800-number system
covered by this notice is legally inadequate under Proposition 65, we
anticipate that the Attorney General will proceed to prosecute this matter
under Health and Safety Code Section 25249.7(c).
See letter from Andrea
Sheridan Ordln, Chief Assistant Attorney General, to The Honorable Lloyd
Connelly, dated March 18, 1988.
Depending upon the Attorney General's
J"
response, we also anticipate that other California prosecutors may become
involved in aspects of this matter or related matters not technically covered
by this notice.
In this instance, because of our role as original co-sponsors
and proponents of Proposition 65 and because of the unique precedentlal
importance of prosecutorial actions commenced in response to this notice, we
request that the Attorney General and other involved prosecutors indicate that
they will support a motion by the undersigned entities to intervene in any
such action.
Please advise us as soon as possible as to your plans for initiating.
action under Section 25249.7(c) in this matter.
Please also provide us with
copies of any pleadings you file in this matter and any communications you
initiate with any of the manufacturers and/or retail market c h a l n s n a m e d in
this notice.
If we do not hear from you within 60 days of the date of this
letter, we will proceed to action pursuant to Section 25249(d).
Respectfully submitted,
Q
SIERRA CLUB
Carl Pope
Deputy Conservation Director
t / / { j x t . c . ~ K -,,-"....
Davi'~ Roe
Attorney
CAMPAIGN CALIFORNIA
NATURAL RESOURCES DEFENSE COUNCIL
Tom Hayden 1& C~thy Cairo
Chair
Executive Director
AI Meyerhof~
Attorney at Law
Enclosures
CC:
By:
(4)
[listed on proof of service]
Grocery Manufacturers Association
Ingredient Communications Council,
California Retailers Association
California Grocers Association
Inc.
~
~'~
PROP65
News-26586
ENVIRONMENTAL DEt ENSE FUND
Rockridge Market HMI
56.S5 College Avenue
Oakland. CA 94618
(415) 658-g008
FOR RELEASE:
August 2, 1988
11:15 a . m .
For Further Information Call"
David Roe or Carl Pope
at (916) 444-6906
TOBACCO COMPANIES, SUPERMARKETS FACE MASSIVE FINES
UNDER PROP. 65 ENFORCEMENT AIMED AT 800-NUMBER,
MISSING CANCER WARNINGS ON CIGARS AND PIPE TOBACCO
Envlronmenta ! groups annouDce formal actlon t o ~
The first comprehensive, scatewide action to enforce
Proposition 65 will seek an estimated $1.3 billion in
penalties from tobacco companies and the state's major
supermarket ehalns.
"This is a direct challenge to the 800-number that
producers and marketers have been hiding behind for the la:
five months," said David Roe, attorney for the Envlronment~
Defense Fund.
"It's time to stop playing hide-and-seek wi
consumers' health, and to give Californians what they vote,
for--real warnings on The handful of real cancer and birth
defect threats that they actually face."
Q
National Headquarters
257 Park Avenue South
New York, NY 10010
(212) 505-2100
1616 P Street.N W
Washington, DC 20036
(202) 387-3300
1405 Arapaho~ Avenue
Boulder, CO 80302
(303) 440.4901
1108 East Main Street
Richmond, VA 23219
(804) 780.1297
128 East Hargctt Street
Raleigh, NC 27601
(919) 821-7793
A coalition of public Interest groups today filed
advance notice of their action, as required by law, and
invited Attorney General John Van de Kamp and other
prosecutors to participate. The groups include the
Environmental Defense Fund, Sierra Club, Natural Resources
Defense Council, and Campaign California.
The toll-free number system, described by critics as
"I-800-BALONEY," was Invented last February by the food
ifidustr3, when Proposition 65 went into effect, and requlr~
customers to telephone and ask for information about each
15,O00 products in order to receive the health warnings
required by the new law. The system has been almost entir~
shunned by consumers, but is being relied on by many
manufacturers and retailers of consumer products.
,
PROP65
News-26587
9
.?~<,;.{,
The groups' action is targeted at cigar, pipe tobacco, and loose
cigarette tobacco products, many of which are listed with the 800 number but
which are otherwise sold without warning. It covers 225 tobacco products being
sold in violation of Proposition 65 in eight major California supermarket
chains.
"This is a classic example of a legal gap that Proposition 65 was
designed to close," said Carl Pope of the Sierra Club. He noted that federal
law requires cancer and birth defect warnings on cigarettes, but not o n
cigars, plpe tobacco, or even "roll your own" cigarette tobacco.
"Proposition
65 closes the loopholes in exlstlng toxlcs law--that's one reason it was
necessary," Pope said.
The Attorney General and other prosecutors receiving the groups' formal
notice have 60 days to decide whether to prosecute. After that time the groups
themselves may sue the violators under Proposition 65's citizen suit
provision.
Q
PROP65
News-26588
[60-day notice, 8/2/88]
p a g e 1 of 7
ATTACKEENT A
MANUFACq'JKER--@~ shown on Package
(parent corporation shown in
parentheses)
Q
NAME PRODUCT
(products shown with "*" are
listed with the 800 number)
American Tobacco Company
Half and Half cigarette tobacco
Bull Durham smoking tobacco
Paladin Black Cherry pipe tobacco
Avantl Cigar Company
Marca Petrl Cigaretto cigars
Toscanelli Marca Rossi cigars
Bensen International
Skandinavik Danish pipe tobacco
Coffee
Aromatic
Natural
Mixture
Bering
(Jno. H. Swisher & Son. Inc.)
*Bering cigars
*
Coronadas
*
Imperials
*
Plazas
*
Champions
Black Jack
*Rigoletto
*
Black
*
Palme
*
Black
ID
Tam cigars
Arrow
Grande
Jack
PROP65
News-26589
.'~j:
page
Brown and W l l l l a m s o n
(BATUS Inc.)
C o n s o l i d a t e d Cigar C o m p a n y
Q
.... .
2 of 7
*Bugler smoking tobacco
*Sir Walter Raleigh pipe t o b a c c o
*
Regular
*
Aromatic
*
Cherry
*
' Light Aromatic
*
Special Mixture
*Kite Mentholated c i g a r e t t e tobacco
*Dutch Hasters c i g a r s
*
President
*
Panetela
*
Cadet
*
*
*
*
*
*
Cadet Tip
Cameroon Elite
BankersFalcons
Corona
De I.~xe
Cameroon Llte
*
Cameroon Life W h i f f s
*
Cameroon Whiffs
*Dutch Treats little cigars
*
[blue package]
*
Pipe Aroma
*
Menthol
*
Sweet
*AyC Grenadiers cigars
*
Panatelas De Luxe
*
Classic
Coronas
*
Lonsdales
*
Natural Cameroon W r a p p e r
*
Natural Candela W r a p p e r
*
Gallantes
*
Bravura
*La Corona Whiffs little cigars
*El Producto cigars
*
Blunts
*
Puritano Finos
*
Favorltas
.
Queens
*Ben Franklln cigars
*
Blunts
*
Perfecto
*Sail pipe tobacco
*
Regular
*
Aromatic
*
Natural
*
Mild Cavendish
*Black Tie tobacco
PROP65
N e w s - 2 6590
9 ~.L'.'<-:~""
.~'~.
9 9 ~.,..~
~.~ ,~.
page 3 o f 7
Consolidated Cigar Company
[continued]
9 Backwoods Mild And Natural Cigars
9 Murlel r
9
Coronella
9
Regular
9
Pipe Aroma
9
Sweet
9
[plain]
9
Air~ips
9
Menthol.
9
Muriel Sweets
9
Tip Cigarillos
9
Sweet Cigarillos
9 Roltan cigars
9
Bankers
9
Falcons
Cuesta Rey International
*Cuesta Rey Tam clgars
Douwe Egberts
(United States Tobacco Company)
Q
Garcla y Vega
(General Cigar Company)
Drum cigarette tobacco
Amphora pipe tobacco
Rich Aroma
Full Aroma
Regular
Mild Cavendlsh
Black Cavendlsh
Arome Fort
M l l d Aroma.
Ultra Mild Cavendish
U l t r a Mild
* G a r c l a y Vega c i g a r s
*
E n g l i s h Coronas
*
Panatellas
*
P a n a t e l l a De Luxe
*
Tips
*
E1egantes
*
Gallantes
*
Whiffs
*
Gran Premlo
*
Bravura
*
Cigarillos
*
Chico
*
Presidente
*
Degado Panetela
*
Cranadas
*
Miniatures
f,,,
PROP65
News-2
9
9
~
'
...'..~.
6591
k'
~
.:..~..~
page 4
General Cigar Company
a company of Culbro Corporation
* T i p a r i l l o cigars
*
Mild Blend
*
Aromatic Blend
*
Menthol
*White Owl cigars
*
New Yorker
*
Invincible
*
Panetela Deluxe
*
Rangers
*
Miniatures
*
Coronetta Deml-tip
*
Demi-tlp
*Wm. Penn cigars
*
Braves
*
Panatelas
*
Perfectos
*
Willow tips
*TiJuana Smalls little c i g a r s
*
Cherry
*
Menthol
*
Regular
*
Aromatic
*Robert Burns cigars
*
Black Watch
*
Cigarillos
Havatampa Inc.
(Havatampa/Phillies Cigars)
*Havatampa Jewels cigars
Havatampa Jewels Sweet cigars
Q
House of Windsor Inc.
Argosy Black pipe tobacco
Bond Street pipe tobacco
House of Windsor cigars
Palmas
Panatellas
Palms Lites
Sportsman
Perfecto Garcla cigars
Palma Royal
Governors
Corona Larga
.
of
-
-
7
PROP65
N e w s - 2 6592
: ~ . ~
~'-,-..,
, ..:f.....,
page
John Hiddleton
Inc.
Jno. H. Swisher & Son. Inc.
.?
Q
-
5'of 7
*Prince Albert pipe tobacco
*Carter Hall. pipe tobacco
*Apple pipe tobacco
*Hickory smoklng tobacco
.Hiddleton's pipe tobacco
*
Cherry Blend
*
Fine Smoking Tobacco
*
Cherry Cavendish
*
Cold And Mild
*
Black And Mild
*Hiddleton's cigars
*
.Cherry Blend Cigars
.
Gold And Mild
*
Black And Mild
= "
*Kentucky Club Continental Blend
pipe tobacco
*Swisher Sweets cigars
*
Perfecto
*
Coronella
*
Wood Tip
*
Slims
*
Little Cigars
*
Cigarillos
*
Tip Cigarillos
*
Sweet Coronella
*Santa Fe cigars
*
Fairmont
*
Patties
*
Panetela
*King Edward cigars
.
Invincible
*
Panatela
.
Specials
*
Imperials
*
Superior
*Optimo cigars
*
Admiral
.
Palmas
*
Optlmo
*
Sports
.
Futura
.
Universal
f-
9 .
PROP65
N e w s - 2 6593
,
":7..j~~:~.5-,.
p a g e 6 Of 7
Lane Limited
*Captain Black p i p e tobacco
*
Gold
*
Regular
*
Supreme
*
Royal
*
Rich Black
*Don Pablo Light pipe tobacco
Larus and Brother
(Lane Limited)
*Edzeworth Ready-Rubbed pipe tobacco
*Executive Mixture Sweet Birch
Southern
Lorillard
Erik cigars
Menr~hol Filter
Natural
Cherry
Between The Acts little cigars
Phillies Cigar Co.
(Havatampa/Phillies Cigars)
Pinkerton Tobacco
R.J. Reynolds
(RJR Nabisco)
Republic Tobacco Co.
Royal Factories
(Consolidated Cigar Company)
*Phlllles cigars
Cheroot
*
Titan
*
Blunt
*
Perfecto
*
Velvet pipe tobacco
Black Clipper Black Cavendish
smoking tobacco
* C a r t e r Hall plpe tobacco
Top cigarette tobacco
*Flying Dutchman pipe tobacco
PROP65
N e w s - 2 6594
"~i".;
9.:,%
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.
.
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9
.
. .'.
.
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pag'e 7 of 7
Sutliff Tobacco
Company
Swedish Tobacco Company
*Heines Blend smoking tobacco
*Old Grand Dad Cavendish smoking
tobacco
*Mixture 79 smoking tobacco
*
Cherry Blend
*
[plain]
*
Cherry Brandy
Borkum Riff pipe tobacco
Riff Cut Mild Texture
Rum
Whiskey
Ultrallght
Cherr~
Black Cavendlsh
Cherry Cavendlsh
Cavendlsh
Cortez Corordtas cigars
G o l d e n
Thrifty
(Consolidated
Cigar Co.)
United S t a t e s Tobacco Company
q
*Pipe Tobacco
*
Golden Burley
*
Black Cavendlsh
*
Mild Virginia
*
Sweet Cavendlsh
*
Black and Gold Burley
*
Rich Golden Mixture
Sweet Rum Crooks Wolf Bros.
Sweet Rum Crookettes
Wolfcut Crookettes
Zig Zag Premium cigarette tobacco
PROP65
N e w s - 2 6595
-.;~:...
~;
. .!...
.?...$ .
j o -..
.2
[60-day notice. 8/2/88]
page
i of I
ATTACKHENT B
Chemical* found ~
.tobacco smoke
Dat@ llsted
Acrylonitrile
July i, 1987
4-Aminoblphenyl
February 27, 1987
Benz[a]anthracene
July I, 1987
Benzene
February 27, 1987
Benzo[b]fluoranthene
July I, 1987
Benzo[J]fluoranthene
July i, 1987
Benzo[k]fluoranthene
July I, 1987
Benzo[a]pyrene
July i, 1987
2-Naphthylamlne
February 27, 1987
Vinyl Chloride
February27, 1987
Q
*includes only chemicals listed prior to August i, 1987.
See IARC Monographs on the ~valuatloD of The Carcinogenic Risk of
Chemicals t_ooHumans, vol. 38 "Tobacco Smoking" (IARC, Lyon, France: 1986),
Section 3, "Chemical composition."
PROP65
News-26596
[60-day notice, 812188]
page I of 1
ATTACHMENT C
List of Retail ChalD~ Govered ~.y 60-day Notice
Albertson's Inc.
Alpha Beta Company
Lucky Stores Inc.
Raley's
Ralphs Grocery Company
Safeway Stores Inc.
Thrlfty Drug and Discount S t o r e s
Vons Grocery Co.
Q
PROP65
N e w s - 2 6597
/
'"
o,
9
.
T
~.~;-.. . ,
.
[60-day n o t i c e , 8/2/88]
page i of i
ATTACHMENT D
Text o f Fecorded Message
[The following is the complete text of the pre-recorded warning message
available through the 800-number administered by the Ingredient Communication
Council, Inc. (800) 431-6565. This message is associated with each of the
products identified with an a s t e r i s k in Attachment A. It is played, over the
telephone llne, when a caller successfully identifies one of such products by
specific brand'~ame.
No such warning is played if a caller requests
information on "cigars," "pipe tobacco," "cigarillos," "cigarette tobacco,"
"tobacco," or any product description other than specific name brand.
[NOTE: slight variations in the specific brand name requested (e.g.,
"William Penn" cigars instead of "Wm. Penn" cigars; "AyC Grenadier cigars"
instead of "Antonio y Cleopatra Grenadier cigars") can result in being
informed that the product is "not listed with the ICC at this time." In
addition, some tobacco products have different listings for different package
sizes and/or package types of the identical product (e.g., Captain Black
pipe tobacco) and the caller must specify which size and package type in orde~
to receive the recorded message.]
Q
TEXT:
"The State of California requires that the following statement be
given to you. Warning: This product contains chemicals known to the
State of California to cause cancer, birth defects, or-other reproductlv
harm. For further information about this product, please stay on the
llne and an operator will assist you."
[If additional information is requested, in some cases the operator will
provide the caller with a toll-free number to call the manufacturer. No
other information is provided, and the call is then terminated.]
PROP65
News-26598
Pursuant To The Provisions
Of The California Health &
SafetyCode:
WARNING:Pipe and Smoking
Tobaccos and Cigars Contain/
Produce Chemicals Known To
The State Of California To
Cause Cancer, and Birth
Defects Or Other Reproductive
.~ar~o
M
PROP65
N e w s - 2 6599

F IL.SD - Prop 65 News Documents

Transcription

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