PROP65 News-12845 DAVID S. MACCUISH (State Bar No. 054024

Transcription

© Prop 65 News. All Rights Reserved.
PROP65
News-12845
DAVID S. MACCUISH (State Bar No. 054024)
KURT WEISSMULLER (State Bar No. 117187)
MICHAEL J. STILES (State Bar No. 179214)
McCLINTOCK, WESTON, BENSHOOF,
ROCHEFORT, RUBALCAVA & MaeCUISH LLP
444 South Flower Street, Forty Third Floor
Los Angeles. California 90071-2901
Telephone: (213) 623-2322
Facsimile: (213) 623-0824
Attorneys for Plaintiffs
DAVIDOFF OF GENEVA, INC.
and DAVIDOFF OF GENEVA (CT), INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
WEST DISTRICT
DAVIDOFF OF GENEVA, INC., a
California corporation; and DAVIDOFF
OF GENEVA (CT), INC., a Connecticut
corporation,
Plaintiffs,
V.
REUBEN YEROUSHALMI, an individual,
and DOES 1 through 1,000, inclusive,
Defendants.
Case No. SC 055014
Date: January 25, 1999
Time: 1:30 p.m.
Dept.: B
DAVIDOFF OF GENEVA, INC. AND
DAVIDOFF OF GENEVA (CT), INC.'S
OPPOSITION TO SPECIAL MOTION
TO STRIKE FIRST AMENDED
COMPLAINT
Filing Date: November 24, 1998
Trial Date: None Set
Discovery Cutoff: None Set
Motion Cutoff: None Set
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T A B L E OF C O N T E N T S
I.
I N T R O D U C T I O N A N D S U M M A R Y OF A R G U M E N T
II.
P R O P O S I T I O N 65 . . . .
III.
S T A T E M E N T OF F A C T S
IV.
LEGAL ARGUMENT
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A.
The A n t i - S L A P P Statute Does Not A p p l y To This A c t i o n
B.
This A c t i o n Is M a i n t a i n e d In G o o d Faith . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
Plaintiffs' Can Establish a Probability o f Prevailing In This A c t i o n
D.
V.
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1.
P r e p o n d e r a n c e O f T h e E v i d e n c e Is T h e A p p r o p r i a t e Standard . . . . . .
2.
T h e Facts S u p p o r t A P r i m a Facie S h o w i n g O f L i k e l i h o o d O f
Prevailing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. ....
W h e t h e r T h e Court M a y Or M a y N o t Exercise Its Discretion To
Grant . . . . . . . . . . . . . . . . . .
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CONCLUSION
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TABLE OF AUTHORITIES
FEDERAL CASES
Association for Responsible Calcium Products v. State of California,
Los Angeles Superior Court Case No. BC 162671 . . . . . . . . . . . . . . . . . . . .
STATE CASES
Allstate Insurance Co. v. Fisher,
31 Cal.App.3d 391, 107 Cal.Rptr. 251 (1973)
......................
Beilenson v. Superior Court,
44 Cal.App.4th 944, 52 Cal.Rptr.2d 356 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . .
Church of Scientology v. Wollersheim,
42 Cal.App.4th 628, 49 Cal.Rptr.2d 620 (1996))
.........................
DRG/Beverlv Hills, Ltd. v. Chop-Stix Dim Sum Caf & Takeout III, Ltd.,
30 C~il.App.4th 54, 35 Cal.Rptr.2d 519 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . .
K& W Pharmacy, Inc. v. State Department of Social Welfare,
275 Cal.App.2d 139, 79 Cal.Rptr. 598 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ludwig3v7. Superior Court,
Cal.App.4th 8, 43 Cal.Rptr.2d 350 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
People v. Mitchell Bros. Santa Ana Theater,
128 Cal.App.3d 937, 180 Cal.Rptr. 728 (1982)
Planned Protective Services, Inc. v. Gorton,
200 Cal.App,3d 1,245 Cal.Rptr. 790 (1988)
..........................
............................
Tague v. Citizensfor Law & Order, Inc.,
75 Cal.App.3d Supp. 16, 142 Cal.Rptr. 689 (1977)
.......................
Wilcox v. Superior Court,
27 Cal.App.4th 809, 33 Cal.Rptr.2d 446 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . .
Zhao v. gong,
48 Ca|.App.4th 1114, 55 Cal.Rptr.2d 909 (1996) . . . . . . . . . . . . . . . . . . . . . . . . .
DOCKETED CASES
People of the State of California ex rel. John K. Van
De Kamp v. Safeway Stoves, et al.,
San Francisco County Superior Court Case No. 897576 CSafeway Stores")
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STATE STATUTES
California Code o f Civil Procedure
w
...................................................
w
.........................................................
w 425.16(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
w 425.16(b)(1)
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California Code o f Evidence
w4520
..........................................................
California Health & Safety Code
w 25249.5
et seq
w 25249.7(d)
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I.
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INTRODUCTION AND SUMMARY OF ARGUMENT
Plaintiffs Davidoff of Geneva, Inc. and Davidoff of Geneva (CY), Inc.
("Plaintiffs"), hereby submit this memorandum in opposition to defendant Reuben
Yeroushalmi's special motion to strike the first amended complaint. This motion should be
denied as meritless for the following reasons:
First, this lawsuit seeks only a declaration that Plaintiffs are not in violation, and
have not violated, the Safe Drinking Water and Toxic Enforcement Act of 1986 ("Proposition
65"), codified at Cal. Health and Safety Code w25249.5 etseq. This action for declaratory' relief
is not subject to California's anti-SLAPP statute, Cal. Code of Civil Procedure w 425.16,
because it is not an action that seeks to visit economic punishment on defendant, Mr.
Yeroushalmi, in an effort to diminish his ability to exercise his First Amendment rights. Not
surprisingly, the defendant's motion and supporting papers fail to identify any a~thority
supporting its position that a declaratory relief matter such as this should be dismissed under
California's anti-SLAPP statute. Defendants' motion should be denied on this ground alone.
Second, even if it can be argued that such an action for declaratory relief is
properly subject to the anti-SLAPP initiative, Plaintiffs provide ample evidence with this
opposition to demonstrate, as required by the anti-SLAPP statute, that there is a probability that
they will prevail on the claims raised. Plaintiffs show by the declaration ofChristoph Kull that
Plaintiff Davidoff of Geneva, Inc. is expressly exempt from Proposition 65; and Davidoff of
Geneva (CT), Inc. has at all times complied with the statutory warning provisions of Proposition
65 as they relate to the tobacco products at issue. In fact, after the initiation of this lawsuit,
Plaintiffs submitted, at defendant Yeroushalmi's request, the Kull Declaration setting forth the
facts which conclusively establish that Plaintiffs are not and cannot be held liable under
Proposition 65's unwarned exposure prohibition. Rather than provide a meaningful response,
or open a dialogue regarding the merits of the Proposition 65 claims, defendant chose
nevertheless to file this motion. Because Plaintiffs are likely to prevail, the motion should be
denied.
II.
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PROPOSITION 65
Proposition 65, approved by California voters in 1986 and effective January l,
1987, prohibits a "person in the course of doing business" from "knowingly and intentionally"
exposing any individual to a chemical known to the state to cause cancer or reproductive harm
"'without first giving clear and reasonable warning." Cal. Health and Safety Code w 25249.6.
However, this prohibition against unwarned exposures does not apply to all persons ~acting in
the course of business. Rather, persons (or businesses) employing less than 10 employees are
expressly exempt. Cal. Health and Safety Code w 25249.1 l(b).
Primary authority to enforce Proposition 65's unwarned exposure prohibition lies
with the Attorney General for the State of California. Secondary authority is vested with the
district attorney or city attorney in any city with a population in excess of 750,000 or any city
prosecutor acting with the consent of the district attorney in the jurisdiction of the~lleged
violation. Finally, Proposition 65 authorizes private parties to seek to enforce its prohibitions.
However, prior to maintaining an action a private party must give "notice of the violation which
is the subject of the action" to the Attorney General and the district and city attorneys in whose
jurisdiction the violation is alleged to have occurred and to the alleged violator.: Cal. Health
& Safety Codew 25249.7(d). After providing this notice, a private party must wait sixty (60)
days in order to provide the public enforcers sufficient time in which to evaluate the claim and,
if they choose, to institute an enforcement action in the public interest.
Id.
No such
enforcement action has been filed in this matter.
"Person" is defined under Proposition 65 as "an individual, trust, firm, joint stock company,
corporation, company, partnership, limited liabilitycompany, and association." Cal. Health and Safety
Codew 25249.1 l(a).
2
Defendant erroneously indicates at page 3, lines 13-14 of its memorandum that any person
"may" give notice to the entities identified in Health and Safety Code Section 25249.7(d). Provision
of this notice is mandatory and jurisdictional.
III.
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STATEMENT OF FACTS
DavidoffofGeneva, Inc. ("DGI") is a California corporation which owns a retail
store at Two Rodeo, 232 Via Rodeo/North Rodeo Drive, Beverly Hills. California. At this retail
location, DGI sells cigars and other tobacco products. Davidoff of Geneva (CT). Inc. CDGI
(CT)") is a Connecticut corporation which, among other things, distributes cigars and tobacco
products to various locations throughout the United States. Declaration of Christoph Kull
("Kull Declaration") at 821, (attached as Exhibit A to Declaration ofKurt Weissmuller)
On September 24, 1998, defendant Reuben Yeroushalmi, an attorney who himself
practices law in Mr. Mehrban's office, mailed a notice of violation to DGI and DGI (CT) 3, the
Attorney General, the District Attorney for the County of Los Angeles and the City Attorney
for the City of Los Angeles. (See Exhibit A to First Amended Complaint ("FAC").) The
defendant's notice alleges that since September 24, 1994, the alleged violator, by virtue of its
sale of cigars, knowingly and intentionally exposed consumers to tobacco smoke and certain
chemicals which have been identified by the state to cause cancer or reproductive harm. Id.
The notice further alleges that the alleged violator knowingly and intentionally exposed and
exposes the public to Proposition 65-listed chemicals through second hand smoke from cigars.
ld.
On November 24, 1998, sixty-one days after issuance of the notice, Plaintiffs
filed the instant declaratory relief action. Following service of the complaint, the defendant
contacted counsel for Plaintiffs and indicated that he did not intend to pursue a second hand
smoke claim against Plaintiffs. (Declaration ofKurt Weissmuller ("Weissmuller Dec.") at 822.)
As a result, on or about December 22, 1998, Plaintiffs filed a first amended complaint deleting
any discussion of second hand smoke issues. Plaintiffs' first amended complaint contains no
causes of action sounding in tort or injunctive relief.
Defendant also requested that he be provided with evidence suppcrting(1) DGI's
claim that it is not subject to Proposition 65, and (2) DGI (CT)'s claim that it did not violate
3
The defendants notice of violation erroneously identifiedthese entities as "DavidoffofGeneva."
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Proposition 65. (Weissmuller Dec. at 824.) In response, on December 17, 1998, Plaintiffs'
provided the defendant with a declaration of Christoph Kull, the President of DGI and DGI
(CT). (Weissmuller Dec. at 825.) In his declaration, Mr. Kull attests to the following facts:
9
DGI owns a retail store located at Two Rodeo, 232 Via Rodeo/North
Rodeo Drive, Beverly Hills, California. This is DGI's only California
location.
9
DGI currently employs a total of six employees and at all times has
employed fewer than ten employees.
9
DGI (CT) distributes cigars and tobacco products to locations throughout
the United States.
9
All cigars distributed by DGI (CT) are contained in sealed packages or
boxes, each of which is accompanied by an approved Proposition 65
warning.
9
DGI (CT) does not sell or distribute individual cigars.
Mr. Kull's declaration establishes that (1) DG! is not subject to Proposition 65's unwarned
exposure prohibition as it does not now, nor has it ever, employed more than nine employees,
and (2) DGI (CT) did not violate Proposition 65 by virtue of its distribution of cigars as each
box or package was accompanied by the requisite Proposition 65 warning.
Rather than substantively responding to Mr. Kull's declaration, this motion to
strike, based upon California Code of Civil Procedure Section 425.6, California's so-called antiSLAPP 4 statute, followed.
IV.
LEGAL ARGUMENT
California's anti-SLAPP statute provides, in pertinent part:
"(b)(1) A cause of action against a person arising from any act of
that person in furtherance of the person's right of petition or free
speech under the United States or California Constitution in
connection with a public issue shall be subject to a special motion
to strike, unless the court determines that the plaintiff has
4
The acronym SLAPP stands for "strategic lawsuit against public participation."
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established that there is a probability that the plaintiffwill prevail
on the claim." Cal. Code ofCiv. Pi'oc. w 425.16(b)(I)
In order to make the determination required under section 425.16(b)(1), the court must consider
not only the pleadings but also any supporting affidavits setting forth admissible evidence. Cal.
Code ofCiv. Proc. w425.16(b)(2); Ludwig v. Superior Court, 37 Cal.App.4th 8, 43 Cal.Rptr.2d
350 (1995).
A.
The Anti-SLAPP Statute Does Not Apply_ ]'o This Action
California's anti-SgAPP statute takes aim at harassing, scorched-earth ~pe
lawsuits intended to visit financial damage upon a defendant to chill otherwise protected freespeech conduct. SLAPP suits all share the same primary goal - to "chill the valid exercise of
the Constitutional rights of freedom of speech and petition for redress of grievances." Cal.
Code of Civ. Proc. w 425.16(a); Wilcox v. Superior Court, 27 Cal.App.4th 809, 819, 33
Cal.Rptr.2d 446 (1994); Zhao v. Wong, 48 Cal.App.4th 1114, 55 Cal.Rptr.2d 909 ('1996).
Indeed, the typical SLAPP suit takes the form aft action for defamation, libel, slander, various
business torts such as intentional interference with prospective economic advantage, nuisance,
and intentional infliction of emotional distress. Id. The purpose of such cases is to exact
damages from the defendant. In seeking damages and other similar relief, the Plaintiff can
"subject the litigant to economic loss sufficient to discourage the free exercise of /~
Constitutionally protected right." Id. At 634.
This declaratory relief action is not such a case. This is not a lawsuit filed to obtain
"an economic advantage over the defendant" (Wilcox at 816) or to"economically bludgeon the
opposition into submission." (Church ofScientology v. Wollersheim, 42 Cal.App.4th 628, 49
Cal.Rptr.2d 620 (1996)). Rather by this action, Plaintiffs only seek a declaration that they have
not violated Proposition 65.
In fact, the one characteristic which separates the present action from every case
cited by the defendant, and indeed from every California case discussing the anti-SLAPP statute
- by this action Plaintiffs do not seek to gain any economic advantage over the defendant.
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There is no damage claim nor a claim for injunctive relief which might impose economic
burdens upon the defendant. ~ Rather, the Plaintiffs' sole purpose is to obtain an adjudication
of their legal rights. As conceded by the defendant in his moving papers, SLAPP suits are
characterized by a desire not to win but to detract the defendant from his objective.
(Defendant's Point and Authorities at 3:24-25, relying on Church ofScientotogy v. Wollersheim,
supra.) In this case, the one and only goal of Plaintiffs is to prevail and remove the distracting
and economically untenable threat that they may wrongfully be sued under Proposition 65 based
on the defendant's notice of intent to sue.
Furthermore, Plaintiffs are not aware of any court which has held that an action
purely for declaratory relief is barred under the anti-SLAPP statute, and the defendant does not
direct the Court's attention to any such authority. Significantly, the Attorney General in
~4ssociation for Responsible Calcium Products v. State of California, Los Angeles S~perior
Court Case No. BC 162671, a case relied on heavily by the defendant, did not even bringits
motion to strike under California's anti-SLAPP statute. It is clear that this kind of lawsuit does
not implicate the anti-SLAPP statute.
B.
This Action Is Maintained In Good Faith
Contrary to defendant's intimation, this action was brought in good faith. First,
Plaintiffs filed this action in the appropriate court. The alleged unwarned exposures occurred
in Beverly Hills, California; DGI's retail store is located in Beverly Hills; and Mr. Yeroushalmi,
the defendant, resides in Beverly Hills. Thus, Plaintiffs cannot be said to have engaged in
forum shopping.
Second, Plaintiffs waited for the statutory sixty day waiting period required under
Proposition 65 before filing its declaratory relief action. During this period, no action was filed
s
While it is true that Plaintiffs' prayer for relief seeks an award of attorneys' fees and costs, that
fact does not change the analysis. Prevailing parties are statutorily entitled to an award of costs.
Plaintiffs' prayer for costs simply reserves that right. As for attorneys' fees, a party is entitle to apply
to the court for an award of attorneys' pursuant to a private attorney general theory or where the
opposition has acted in bad faith. Again, Plaintiffs' prayer seeks only to reserve that right.
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bv any of the statutorily authorized public enforcers. Plaintiffs have named as a defendant the
only person claiming a violation exists, Mr. Yeroushalmi.
Third, the Association for Responsible Calcium Products 6 case, upon which the
defendant places great importance, is completely inapposite. In Calcium Products, the judicial
branch was being asked to enjoin the Attomey General from filing a Proposition 65 enforcement
action regarding the safety of certain calcium supplements. Certainly, such an action, where one
co-equal branch of government is asked to enjoin another from performing its statutorily and
Constitutionally prescribed duties, constitutes an affront to California's law enforcement system
and challenges the very essence of our separation of powers principles.
What is before the Court in this lawsuit is a far cry from the situation in Calcium
Products.
Here, Plaintiffs did not sue the Attorney General or any of the other public
enforcement agencies.
Moreover, neither the Attorney General nor any other-public
enforcement agency has decided to pursue an action pursuant to Mr. Yeroushalmi's Proposition
65 Notice of Intent to Sue. Nor has any agency intervened in this matter. Thus, defendant's
reliance on the arguments advanced in the Calcium Products case is unfounded. Quite simply,
Plaintiffs have brought the present action to ensure that they are not subject to a specious
lawsuit sometime in the future.
Because the anti-SLAPP statute was never intended and does not apply to
declaratory relief actions, the defendant's motion to strike should be denied. However, even if
the anti-SLAPP statute did apply, the motion should be denied because Plaintiffs demonstrate
below that they can prevail on the merits.
C.
Plaintiffs' Can Establish a Probability of Prevailing In This Action
In order to prevail on a special motion to strike under California's anti-SLAPP
statute, the defendant has the initial burden of proving that the action arises from any act in
6
Plaintiffs object to the defendant's request that this court judicially notice the arguments made
by the Attorney General in Calcium Products. There is no basis under the California Evidence Code
to judicially notice the contents of a brief filed in a different, unrelated action, especially one such as
this which has no bearing on the issues raised here.
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furtherance of the defendant's right of petition under the United States or California
Constitutions. Wilcox v. Superior Court, 27 Cal.App.4th 809, 820, 33 Cal.Rptr.2d 446 (1994).
If the defendant makes that showing, the burden shifts to the Plaintiff to prove that it will
probably prevail in the action. C.C.P. w 425.16(a). Courts have interpreted this element to
require that the Plaintiff make a prima facie showing of facts which, if accepted by the trier of
fact, would entitle the Plaintiff to prevail] Wilcox v. Superior Court, 27 Cal.App.4th at 823.
However, in making this determination, the Court is not to weigh the evidence. Id. Thus, even
if the issuing a notice of violation under Proposition 65 constitutes an act in furtherance of the
"'right to petition," the defendant's motion should be denied as Plaintiffs will likely prevail on
the merits.
1.
Preponderance Of The Evidence Is The Appropriate Standard.
The defendant argues at length that in order to obtain the declaratoo' ju~lgment
they seek, Plaintiffs must prove their case by clear and convincing evidence. According to the
defendant, because its anti-SLAPP arguments implicate the constitutional right to petition the
courts for redress of his grievances, Plaintiffs must necessarily meet the heightened standard of
proof. Tellingly, the defendant does not cite to any case standing for this proposition. This
argument is simply wrong and finds no support in statute or case law.
Each of the cases cited by the defendant respect first amendment issues which, by
statute or judicial decree, require a heightened standard of proof. See e.g, DRG/Beverly Hills,
Ltd. v. Chop-Stix Dim Sum Card & Takeout III, Ltd., 30 Cal.App.4th 54, 35 Cal.Rptr.2d 519
(1994) (plaintiff must prove a waiver of contractual contingencies by clear and convincing
evidence); Planned Protective Services, Inc. v. Gorton, 200 Cal.App.3d 1,245 Cal.Rptr. 790
(1988) and Tague v. CitizensforLaw & Order, Inc., 75 Cal.App.3d Supp. 16, 142 Cal.Rptr. 689,
v
The defendant argues that Plaintiffs must also overcome each of its constitutional and common
law defenses. (Defendant's Brief at 8:7-10.) This overstates Plaintiffs' burden. Moreover, the
defendant does not indicate in its moving papers what, if any, constitutional or common law defenses
it may raise. Plaintiffs certainly are not required to anticipate and negate unknown and unidentified
defenses.
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(1977) (involving libel claims raised by a public official and heightened standard required under
New York Times v. Sullivan, 376 U.S. 254 (1964)), and People v. Mitchell Bros. Santa Ana
Theater, 128 Cal.App.3d 937, 180 Cal.Rptr. 728 (1982) (issue involved the appropriate standard
of proof for a nuisance claim based upon obscenity.)
None of the cases cited above stand for the proposition that Plaintiffs bear the
burden of proving their case by clear and convincing evidence and none arose under
California's anti-SLAPP statute. In fact, the only anti-SLAPP case cited by the defendant,
Beilenson v. Superior Court, 44 Cal.App.4th 944, 52 Cal.Rptr.2d 356 (1996), suffers from the
same defects. In Beilenson, a losing candidate in a election for public office sued the winner
for allegedly libelous statements made during the campaign. Under New York Times, supra, the
plaintiff in such an action must show actual malice by clear and convincing evidence. The
winning candidate moved to strike the complaint under the anti-SLAPP statute. In ruling on the
motion, the court held that the plaintiff must show a probability of prevailing under the
heightened standard of proof. However, the court's holding was based on the fact that the
plaintiff's libel claim required such a showing. The Court did not.hold that because the
plaintiff's suit was in retaliation for the defendant's exercise of first amendment rights that the
heightened pleading standard applied.
Plaintiffs' burden of proof under Proposition 65 is a preponderance of the
evidence. That burden does not change by virtue of the fact that Plaintiffs seek a declaration
that they have at all times complied with, or are not subject to, Proposition 65.
2.
The Facts Support A Prima Facie Showing Of Likelihood Of Prevailings_.
California Code of Civil Procedure Section 1061 provides the appropriate
standard for declaratory relief actions. According to section 1061, declaratory relief is properly
granted in cases of "actual controversy relating to the legal rights and duties of the respective
parties." Here, DGI contends that it is not subject to Proposition 65 because it has never
employed ten or more employees. DGI (CT) contends that it has at all times provided the
warnings required under Proposition 65. Defendant's Proposition 65 motion, and its refusal to
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acknowledge the exculpatory facts set forth in the Kull declaration, demonstrates a dispute
between the parties does exist.
Furthermore, the facts established by Christoph Kull's declaration show that
Plaintiffs are likely to prevail in this action. Christoph Kull is the President of both DGI and
DGI (CT). In his declaration, Mr. Kull states that DGI has always employed less than 10
employees. Proposition 65 applies only to persons employing ten or more employees. DGI is
therefore not subject to Proposition 65. Based on these facts, DGI is likely to prevail in this
action.
Mr. Kull's declaration further states that DGI (CT) is in the business of
distributing cigars and cigar related products. However, Mr. Kull's declaration clearly states
that it has only sold cigars in boxes and never individually. In addition, Mr. Kull states that
each package of cigars sold or distributed by DGI (CT) is accompanied by a clear and
reasonable Proposition 65 warning. These facts, if accepted by the trier of fact, entitle DGI
(CT) to the declaration it seeks in this action.
Moreover, pursuant to the stipulated judgment entered in People of the State of
California ex rel. John K. Van De Kamp v. Safeway Stores, et al., San Francisco County
Superior Court Case No. 897576 ("Safeway Stores"), the sole obligation to warn of exposure to
cigar smoke falls upon the cigar manufacturers. There, the State of California filed suit against
tobacco and cigar manufacturers and retailers alleging that the defendants in that action exposed
persons in the state to chemicals known to the State of California to cause cancer or reproductive
harm without adequate warnings as required by Proposition 65. The State resolved the action
with the cigar manufacturers through a stipulated judgment entered by the Court on October 18,
1988. (Attached as Exhibit A hereto)} The cigar manufacturers, referred to in the Stipulated
Judgment as "Judgment Defendants," took on the sole responsibility
8
Pursuant to Cal. Code of Evidence w 452(c), Plaintiffs respectfully request that this
Court take judicial notice of this judgment as an official act of a judicial department.
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for providing Proposition 65 warnings on packaged cigars. To this end, the Stipulated Judgment
provides
"Judgment Defendants agree that they are solely responsible for
placing the warning on the [cigars]." (Exhibit A at 82
The stipulated judgment requires manufacturers to warn that the cigar product will
produce tobacco smoke, a chemical known to the State to cause cancer or reproductive harm.
As stated in the Kull Declaration, DGI (CT) has at all relevant times provided the warning.
Thus, DGI (CT) is likely to prevail at trial on this issue.
D.
.Whether The C.ourt May Or May Not Exercise Its Discretion To Grant
.D.ecla.rato~ Relief Is Irrelevant To The Defendant's Motion To Strike
The defendant concludes its argument by contending that since the issues raised
by Plaintiffs in this action would necessarily be resolved in an as yet to be filed enforcement
action, declaratory relief in this instance would not be proper. However, the defendant does not
cite any directly applicable authority for this proposition.
Moreover, whether this Court
ultimately would exercise its discretion to grant or deny declaratory relief simply is not relevant
to the anti-SLAPP analysis. Under the standards discussed above, if Plaintiffs make a prima
facie showing of facts which, if accepted by the trier of fact, would entitle Plaintiffs to
declaratory relief, the defendant's motion should fail.
Each of the cases relied upon by the defendant is distinguishable from the present
case in one important, and ultimately dispositive, way - in those cases, granting declaratory
relief would not dispose of the entire action. Rather, the declaratory relief sought in K&W
Pharmacy, Inc. v. State Department of Social Welfare, 275 Cal.App.2d 139, 79 Cal.Rptr. 598
(1969) and Allstate Insurance Co. v. Fisher, 31 Cal.App.3d 39 I, 107 Cal.Rptr. 251 (1973), both
cited by the defendant, would have disposed of but one issue in the main action, and not
disposed of the entire matter. Here, if Plaintiffs prevail on the declaratory relief action, the
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matter has ended. Thus, there is no concern with duplicity of actions. 9
Plaintiffs herein simply seek a timely resolution of its compliance with Proposition
65. The Attorney General and the other public enforcers have indicated, by their inaction, that
they do not intend to pursue a public enforcement action against Plaintiffs. The defendant on
the other hand, has left open the possibility of instituting an action, in spite of the fact that he
has already been presented with a declaration attesting to facts which would defeat a claimed
Proposition 65 violation. Plaintiffs are therefore entitled to an immediate declaration of their
rights and responsibilities.~~
The defendant disingenuously argues that allowing this declaratory relief action
to proceed would usurp the statutory enforcement process envisioned under Proposition 65.
According to the defendant, the result would be a flood of litigation instituted by those who
receive Proposition 65 notices "where the party giving notice may not even intend to.file suit
under Proposition 65." (Defendant's Brief at 11:25-27.) It is this surprising admission that is
at the heart of the present controversy and that begs the question: If defendant does not intend
to file a lawsuit, why send the notice of intent to sue in the first instance? We believe the
answer is clear.
The defendant, Reuben Yeroushalmi and his counsel, Morse Mehrban, have
issued scores of Proposition 65 notices in the last year, a number of which have been issued to
cigar retailers and distributors. Certainly in this case, and perhaps in others, the defendant and
his counsel have issued violation notices without knowledge of any actual violation and without
a present intention to maintain a Proposition 65 action. Typically, these notices are followed
9
The defendant's reliance on the judgment entered by the Court in Association for Responsible
Calcium Products v. State of California, supra is misplaced as in that action the Court relied heavily
on the existence of a later-filed enforcement action by the Attorney General. No such action has been
filed in this matter.
~0
To the extent that there is any merit to the defendant's claim regarding the appropriateness of
declaratory relief, that argument is properly raised in a demurrer. As the defendant has failed to comply
with the notice requirements for demurring to a complaint, this motion cannot and should not be
considered as a demurrer.
PROP65
News-12861
by correspondence offering to "settle" the matter. Certainly, California voters did not intend
Proposition 65 to be used in this manner.
In this present case, the defendant and his counsel issued a notice of violation to
DGI and DGI (CT) without investigating the basis for his claims. Had he done a proper
investigation, he would have determined that neither DGI nor DGI (CT) can be held liable
under Proposition 65. Accordingly, DGI and DGI (CT) brought this action to obtain a judicial
declaration that they have not violated Proposition 65 and to resolve -- expeditiously -- this
controversy.
V.
CONCLUSION
For the reasons stated herein, the defendant's motion to strike under California
Code of Civil Procedure Section 425.16 should be denied and costs and fees awarded to
Plaintiffs pursuant to section 425.16(b).
DATED: January 20, 1999
DAVID S. MacCUISH
KURT WEISSMULLER
MICHAEL J. STILES
MeCLINTOCK, WESTON, BENSHOOF,
ROCHEFORT, 1},UBALCAVA & MacCUISH LLP
t
'
'
7
Kurf Weissmuller
DAVIDOFF OF GENEVA, INC. and
DAVIDOFF OF GENEVA (CT), INC.
Exhibit A
PROP65
News-12862
PROP65
JOH~ K. VAN DE KAMP, Attorney General
o , , , o SHERIDAN
, , o , . o , . . .ORDIN
,o=.
ANDREA
Chief Assistant Attorney General
THEODORA BERGER, Assistant Attorney General
F I L H-D
~n~i~oC~u~t'f~,~Cou~
C ~
CRAIG C. T~O~SON
0
CLIFFORD RECHTSCHAFFEN
EDWARD G. WEIL
Deputy Attorneys General
350 McAlllster Street, Room 6000
San Francisco, California
94102
Telephone:
{415) 557-8963
N e w s - 1 2 8 63
2"--"
~988
--
" o,~,~vca.,~
MICROP.Hv,u,,O.,ED
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PEOPLE OF THE STATE OF CALIFORNIA,
ex rel. JOHN K. VAN DE KAMP,
Attorney General of California,
Plaintiffs,
v.
SAFEWAY STORES,
INC., et al.,
Defendants.
(~M FI{.,E IN MY OFI ~l~r-,.
A'rrl;sTz
AUG 2 0 1998
. ~
c~~:m..
)
)
)
)
)
)
)
)
)
)
)
No. 897576
STIPULATION FOR ENTRY
OF JUDGMENT ~/~D
~ A S ~ O
~
AVANTI CIGAR
COMPANY, CORRAL-WODISKA
Y ca ( ~
~I~AS
BERING T;CONSOLIDATED
CIGAR CORPORATION;
CULBRO CORPORATION;
GENERAL CIGAR COMPANY,
INC. (SUED HEREIN AS
GENERAL CIGAR COMPANY);
HA~A,
INCORPORATED
(SUED HEREIN AS
HAVATAMPA, INC. ) ; HOUSE
OF WINDSOR (SUED HEREIN
AS HOUSE OF WINDSOR,
INC.); M & N CIGAR
MANUFACTURERS, INC. ;
PHILLIES CIGAR CO. ;
SUTLIFF, A D M S I O N
OF
CONSOLIDATED CIGAR
CORPORATION (SUED
HEREIN AS SUTLIFF
TOBACCO COMPANY); /NO.
H. SWISHER & SON, INC.
PROP65
N e w s - 1 2 8 64
-.*
I.
1.0.
.
9
"%"
Introduction
On September 30, 1988, the People of the S
t
~
~
California, ex tel. John K. Van de Kamp, ("People") filed a
Complaint for Civil Penalties, Injunctive and Declaratory Relief
("Complaint,) An San Francisco Superior Court, naming
Avanti
Cigar Company; Corral-Wodiska y Ca (Sued herein as
Bering); Consolidated Cigar Corporation; Culbro Corporation;
General Cigar Company, Inc. (Sued herein as General Cigar
Company); Havatampa, Incorporated (Sued herein as Havatampa,
Inc.); House of Windsor (Sued herein as House of Windsor, I~c.);
M & N Cigar Manufacturers, Inc.; Phillies Cigar Co.; Sutliff, a
division of Consolidated Cigar Corporation (Sued herein as
Sutliff Tobacco Company); Jno. H. Swisher & Son, Inc. ("Judgment
Defendants'), among others, as defendants.
1.1.
The Complaint is based on allegations contained in a
Notice of Violation ("Citlzen Notice") sent to the A t t o r n e y
General by the Environmental Defense Fund, the Sierra Club, the
Natural Resources Defense Council, and Campaign California on
August 2, 1988, pursuant to Health and Safety Code section
25249.7 (d). (A copy of the Notice of Violation is attached as
Exhibit A.)
1.2.
Each Judgment Defendant is a corporation that employs
more than ten persons and manufactures, imports, or distributes
tobacco products for sale within the State of California.
1.3.
The complaint alleges that defendants violated
provisions of Proposition 65, Health and Safety Code sections
9
~
PROP65
ir~M~4~.~s~~~,-zTR~reUrrfair
Professions
Act"),
N e w s - 1 2 8 65
Competition A c t T ~ e a s ~ ~
Code sections 17200 e__ttseq.
("Unfair Competition
by kncwingly exposing persons to certain tobacco products,
including cigars and pipe,
tobaccos,
"roll-your-own, and other smoking
which contain/produce
chemicals known to the State of
California to cause cancer and reproductive harm, without first
providing a clear and reasonable warning to such individuals.
1.4.
This Stipulation for Entry of Judgment and Judgment
set forth the terms required by the People, after investigation,
to resolve the Complaint,
and all matters raised in the August 2,
1988 Citizen Notice, as to the Judgment Defendants,
who hereby
accept the entry of this Judgment.
1.5.
For purposes of this Judgment the parties stipulate
that this court has Jurisdiction over the allegations of
violations
contained in the Complaint and personal Jurisdiction
over Judgment Defendants,
San Francisco,
that venue is proper in the County of
and that this court has Jurisdiction to enter this
Judgment as a resolution of the allegations
contained in the
Complaint.
1.6.
The parties enter into this Judgment pursuant to a
settlement of disputed claims between the parties
for the
purpose of avoiding prolonged litigation and to insure that the
objectives
of Proposition
65 are expeditiously
carried out.
By
execution of this Order, Judgment Defendants do not admit any
~
~'i-e~
-~.~ ". ...~.
violations
~Nothing
ud
of Proposition
65 or the Unfair Competition Act.
in this Judgment shall be construed as an admission by
en~ Defendants of an
fact, issue of law or violation
PROP65
;
~ ~ ~ E ~ a n c w ~ I t h
News-12866
the J u d g m e n t - ~ o ~ & ~ u ~ e ~ o ~ e T
,
construed as an admission by Judgment Defendants of any fact,
issue of law, or violation of law.
shall prejudice,
Nothing in this Judgment
waive or impair any right, remedy or defense
Judgment Defendants may have in any other or further legal
proceeding.
However,
this paragraph shall not diminish or
otherwise affect the obligations,
Judgment Defendants
under this Judgment;
results of any further proceedings
other defendants
1.7.
responsibilities
and duties of
neither shall the
in this matter against any
affect this Judgment.
Judgment Defendants prior to the commencement of the
action undertook certain actions to provide warnings.
They
assert that these actions constitute compliance with the
requirements
of section 25249.6 of Proposition
Competition Act.
determined
The People have reviewed these actions and have
that, under the circumstances,
this Judgment,
65 and Unfair
and in conjunction with
it is appropriate not to impose penalties against
these Judgment Defendants,
but that Judgment Defendants must
reimburse the People for certain costs and that injunctive relief
.~
1
2.
~:~.
~
~
2.0.0.
.~Yand
Injunctive Relief: Tobacco Products.
By this Judgment,
each Judgment Defendant is ordered
shall comply with the provisions of Proposition
65 and the
Unfair Competition Act by placing a warning on retail packages or
containers
as specified herein.
This requirement shall apply to
cigars and other tobacco products manufactured
Judgment
Defendants
for sale in California
or imported by the
("Tobacco Products").
PROP65
~~mPm~r~.~ec~i~ms:
products
2.0.0 through 2.6 s h e ~ o r
for which a federally-mandated
2.0.1.
Defendants
N e w s - 1 2 8 67
eu~y
to
warning ~s required.
Immediately upon entry of this Judgment,
Judgment
shall take all reasonable steps consistent with
ordinary packaging and distribution practices to place warnings
on retail packages or containers as specified herein as soon as
practicable.
responsible
Judgment Defendants agree that they are solely
for placing the warning on the products.
Judgment Defendants'
However,
Tobacco Products shall not be packaged,
in the case of imported packaged Tobacco Products,
shipped,
or
by or
o
at the direction of Judgment Defendants for sale in California
without these warnings after the expiration of 150 days from the
date this Judgment
2.0.2.
is entered.
Each Judgment Defendant shall comply with this
warning requirement
its manufacturing
in such a manner as to assure, in light of
and distribution practices,
that all its retail
packages of Tobacco Products shipped for distribution
in
California will carry the warnings required herein.
2.1.
The language of the warning required by this Judgment
shall be as followsz
WARNINGz
This Product Contains/Produces
Chem/cals Known To The State Of California To
Cause Cancer, And Birth Defects Or Other
Reproductive Harm
2.2.
Notwithstanding
the provisions of section 2.1, in the
event a different warning message is required or proposed to be
required by any federal, or other state or local governmental
authority
in which a Judgment Defendant's Tobacco Products are
PROP65
News-12868
may modify the language .o~.-t~.,~
'~-.-~udgamm~"-Defendant
warning required by this section to accommodate such requirement
provided
that the modified message complies with Proposition
65,
and that such Judgment Defendant notifies the Attorney General,
and the Environmental
Defense Fund on behalf of the entities
which provided the Citizen Notice,
in writing at least 90 days in
advance of labeling products with the modified message.
If the
Attorney General believes that the new message does not comply
with Proposition 65, he may take action pursuant to Paragraph 7
of this Judgment.
2.3.
The warning required by this Judgment shall be
displayed
in a clear and reasonable manner.
It shall appear on
the outside surface of retail packages in which Tobacco Products
are sold; provided,
however,
that with respect to cigars sold
individually,
or loose tobacco sold in bulk, from display boxes
or containers
supplied by a Judgment Defendant,
the warning shall
be placed on the display box or container so that the warning can
ordinarily be read by retail customers removing products
that box or container.
from
As used herein, the term "retail package"
means a pack, box, carton, pouch or container of any kind in
which Tobacco Products are offered for sale, sold or otherwise
distributed
wrappers,
to consumers but does not include cellophane
tubes or similar wrappings
in which individual cigars
are sold and does not include shipping cartons or other
~
S,"/
:."
ntainers
i.
r..~ ~
2.4.
not normally purchased by consumers.
The requirements
of sections 2.0 through 2.6 shall be
rseded by any future federal law which satisfies the
PROP65
~lera~-•
~ e ~ .f~r~.~in see~ion 25249.10(a)
of Propositiq~ 6~
2.5. Within 45 days of the entry of this Judgment,
Defendants
News-12869
Judgment
shall cause to be published warnings in newspaper
advertisements.
These advertised warnings shall have the same
content and shall be in the same format and general location in
the same newspapers
and August
as those published on February 2?, May 26,
26, 1988, by said Judgment Defendants pursuant to
Proposition
65.
Until such time as Judgment Defendants have
implemented
the requirements
said Judgment Defendants
of subsection 2.0 of this Judgment,
shall continue to provide shelf signs
and wall signs, copies of which are attached as Appendix B to
this Judgment,
to California retailers of Judgment Defendants'
products who request them.
entry of this Judgment,
In addition, within 14 days after
each Judgment Defendant shall cause to be
sent a letter to each distributor of its Tobacco Products in
California,
and to each retailer that said Judgment Defendant
has previously provided with warning signs advising them that
additional
signs are available without charge.
The People agree
that compliance with this paragraph constitutes compliance with
Proposition
65 for the specific products covered by this Judgment
during the ~50-day period following the date of entry of this
jud.omen~.
2.6.
information
Judgment Defendants will not rely on any toll-free
service to provide the legally required warnings
Tobacco Products under Proposition
65.
for
PROP65
News-12870
~P~T~ents by Defendants
3.0. Judgment Defendants
shall Jointly pay a total of
$75,000 to reimburse the People of California and the parties
providing
the People with the above-referenced
CitizenNotice
for costs incurred by the People in investigating,
resolving
the action.
filing and
These funds shall be paid within 30 days
after the court enters this Judgment by delivery of certified
funds payable to the Attorney General of the State of California
in the amount of $37,500, and separate certified funds in the
amount of $37,500 payable to the Environmental
Defense Fund,
Inc., on behalf of the entities which provided the Citizen
Notice,
to the Office of the Attorney General,
California.
Judgment Defendants
San Francisco,
shall be Jointly and severally
liable for payment of said costs.
4.
Entr~ of Judgment
4.0. The People and Judgment Defendants hereby request that
the court promptly enter the Judgment which appears in this
document.
Provided the court enters the Judgment, Judgment
Defendants waive their right to a hearing or trial on the
allegations
of the Complaint.
The People and Judgment Defendants
agree that this Judgment wall not be binding on any party hereto
unless and until this Judgment is entered.
5.
Matters Covered by thiS Judqment
This Judgment is a full and final Judgment as to these
f:
i' ' i'~]'.~d~
ant
5'0 Defendants only applying to all claims, violations,
~;. ~'~C~'{~.~i[~h~ns, damages,
%~...%,, \,,~",'.~-.qF~..;]e"~./~
",~.
"..'%~
-
costs, penalties or causes of action under
9
~ ' - ~ ~ i o n
25249.6 of Proposition 65 and the Unfair Competition Ac~
PROP65
herein,
News-12871
including ~he payment of costs pursuant to Section 3.
In any action brought by the Attorney General to enforce this
Judgment,
the Attorney General may seek whatever fines, costs,
penalties or remedies are provided by law.
8.
8.0.
Modification Lof Judqment
This Judgment may be modified upon written approval of
the Attorney General and Judgment defendants and upon entry of a
modified Judgment by the court thereon, or upon motion of the
Attorney General or a Judgment Defendant with notice previously
given to all signatories to this Judgment or any other related
Judgment who are manufacturers or importers of Tobacco ProduCts
and to the Environmental Defense Fund on behalf of all of the
parties providing the Citizen Notice as provided by law and upon
entry of a modified Judgment by the court thereon.
9.
9.0.
ADDllcation of Judgment
This Judgment shall apply to and be binding upon the
People and each defendant, their directors, officers,
agents, parents, affiliates,
divisions,
employees,
subdivisions,
subsidiaries and suppliers, and the successors or assigns of any
of them.
i0.
I0.0.
Authority to Stipulate to this Judqmen%
Each signatory to this Judgment certifies that he or
she is fully authorized by the party he or she represents to
enter into and stipulate to this Judgment to execute it on
behalf of the party represented and legally to bind
[I.
ii.0.
PROP65
News-12872
Retention of Jurisdiction
This Court shall retain Jurisdiction of this matter
to implement the Judgment.
JOHN K. VAN DE KAMP, Attorney General
of the State of California
ANDREA SHERIDAN ORDIN
Chief Assistant Attorney General
THEODORA BERGER
Assistant Attorney General
CRAIG C. THOMPSON
CLIFFORD RECHTSCHAFFEN
EDWARD G. WEIL
Deputy Attorneys General
By:
EDWARD G.
Deputy Attorney General
AV~I
CIGAR C O M I ~ Y
CORRAL-WODISKA Y CA (SUED HEREIN AS
SERING)
CONSOLIDATED CIGAR CORPORATION
CULBRO CORPORATION
GENERAL CIGAR COMPANY, INC. (SUED
HEREIN AS GENERAL CIGAR COMPANY
KAVATAM~A, INCORPORATED (SUED HEREIN AS
HAVATAMPA, INC. )
HOUSE OF WINDSOR (SUED HEREIN AS HOUSE
OF WINDSOR, INC.)
M & N CIGAR MANUFACTURERS, INC.
PHILLIES CIGAR CO.
SUTLIFF, A DIVISION OF CONSOLIDATED
CIGAR CORPORATION (SUED HEREIN
AS SUTLIFF TOBACCO COMPANY)
JNO. H. SWISHER & SON, INC.
DATED:
Y
Mic :le Beigel Corash
MORRISON & FOERSTER
PROP65
News-12873
ENVIRONMENTAL DEFENSE FUlx
Rockridgr M~k~ Hall
.~63.~College Avenue
Oakland. CA 946l$
(415) 6~8-8008
Au~sC
2. 1988
60-DAY NOTICE:
FAILURE TO YARN A~OUT TOXIC ~ C A L
EI~OSURE
Health and Safety Code Section 25249.~ (Proposition 65)
The A t t o r n e y General
S~a~e o f C a l i f o r n i a
The C i t y ^ c c o r u e y
C i t y o f Los Angeles
C i t y o f San Diego
C i t y o f San Francisco
The Dlscrlct Attorney
Alameda Co.
Contra Costa Co.
Los Angeles Co.
San Diego Co.
San Francisco Co.
San Macao CO.
Yolo Co.
RE: Exposures to nou-c~arer162 tobacco pro<hates
sold thrc~$h rer~Lt s ~ k e c s
(Invals
of 8 0 0 - ~
"~-For~atlou sys~ea')
Dear A t t o r n e y General, D f s t r i c t A~torneys~
and C i t y A t t o r n e y s :
This l e ~ c e r n o t i f i e s yo~ of v i o l a t i o n s of S e a I t h and
S a f e c y C.ode S e c t i o n 25249.6~ ~he v a r n t n 8 requiremen= o f
P r o p o s l ~ i o n 65. The p a r t i c u l a r s are sac f o r ~ below. You
may b r i n g an a c t i o n Co enforce ~he law under E eaI c h az2d
Safety ~ d e Seccs
25249.7(c).
This r e p r e s e n t s ~he firsC ~aJor enforcement a c t i o n
undertaken under Froposi~iou 65. It covers a large number
o f c u r r e n t and p o t e n t i a l viola~iotls s
over Cvo
hundred i n d i v i d u a l brand-name tobacco produc:s, major
national tobacco manufacturers, and major Callfo~ns fecal1
chains, wi~/~ estimated p o t e n t i a l maximua llabili~y i n
excess of $1.3 bllllon.
This action Is also intended as a direct challenge to
the validity of a purported war~ing system for consumer
products that is now belng offered throughout California,
specis
the toll-free "information system"
(800 number) sponsored by the Gro~er~ Manufacturers of
America and affiliated entities, and operated by the
Ingredient Co~unlcatlon Council, Inc. (800-431-6565).
The 800 number is no substitute for genuine varns
to
consumers, and relying oo it g~ves no protection agaln~t
liability under P~oposfclon 65.
PROP65
News-12874
~hen the LnvalAdicy of the 800-number syst em as currently operace~ i s
established, IC will be clear c.hac warnings for ~-he few consumer products thac
exceed s t a t e - s e t llmlcs for known carclno~ens and reproductive toxins under
Proposition 65 mus~ be ~iven on an individual basis ac polnc of sale,
replacln~ ~he ~enerallzed and mlsleads
noclce now posted in store windows
throughout ~he state which p u r p o r ~ to cover all producc~ Includln~ the vasu
majority for which no warning is required, and which fas
co Lnform the
average consumer as co which products, if any, are actually subJeo~ ~o ~he
warnlng requlremen~.
P u r s u a n t to EeaI~'~ and S a f e t y Code S e c t i o n 2 5 2 4 9 . 7 ( d ) , t h i s n o t i c e i s
be~n~ ~ v e n t o r.he Attorney General. DistrlctAttor~eys, and C ~ y Attorneys As
indicated, and Co ~he vlolacors, ac ~he addresses shown in ~he attached proof
o~ service. A courUesy copy is also beln~ sen~ CO ~he Grocery Manufact-u~era
AssoclaCion, ~he Ir~redien~ Commun/caCion Council, Inc., the Callfot-nAa
Retailers AssoclaCion. and ~he California Grocers AssoclaCion.
SLxC~j' d a y s f r o u t h e d a t e o f ChAs l e t t e r , t h e u n d e r s i g n e d nay b r i n g an
enforcemenm acClon or actions by direct citizen su/c under ~ealch and Safety
Code S e c t i o n 25249.7(d).
S T A T E K ~ T O~ ~ A a T Z ~
The v i o l a t i o n s
consls~ of the follovin~:
I n d i v i d u a l s chroughou~ v.he $~ace of California a r e b e t z ~ e x p o s e d co known
carclnogenlc and/or reproductively toxic chemicals r,hrough the use of
n o n - c i g a r e t t e ~obacco p r o d u c n s , s
c i g a r s , l l ~ l e ~ c l e a r s , p i p e ~obacco,
and l o o s e c i g a r e t t e t o b a c c o .
Each ~ndiv~du.aI p r o d u c t c o v e r e d by this n o t i c e ,
together wi~h ~he name of ~he ~anufac~urer, is lis~ed s At~achmen~ A. This
no,ice does no~ cover any~anufactured clgareC~e p r ~ C
and does no~
cover any ~obacco product bearing a ~ederal warnln~ pursuan~ ~o 15 U . $ . C .
1333(a) o r 15 O . S . C . ~02(a).
On o r a f t e r J u l y 15. 1988, e v e r y one o f c.he p r o d u c t s l i s t e d Ln A t t a c h m e n t
was o b s e r v e d by f s
ws
co be o f f e r e d f o r c e c i l
sale In
Cals
wlthouC adequate warning, on ~-~e shelves of inds
scores of
one or more of the recall market chains listed in Attachment C; and every one
of the recall chains l~sced in At~ach~en~ C was offerln~ one or more such
producns for sale to consumers without adequate warning.
A
I n d i v l d u a l s e x p o s e d . The s
e x p o s e d a r e each and e v e r y
consumer o f the n o n - c i g a r e t t e tobacco p r o d u c t s I i s c e d i n Attachment A, as w e l l
as a l l o c h e r p e r s o n s e x p o s e d o r r e a s o n a b l y a n c l c i p a c e d co be exposed co such
i t e m s and t h e i r c o m b u s t i o n p r o d u c t s ~n a manner e x p o s [ n g them Co ofie o r more
o f the c h e m i c a l s I s
s A t t a c h m e n t B. Such persons i n c l u d e b r e a t h e r s o f
s o - c a L l e d " s [ d e s t r e a m smoke" and " s e c o n d e r / s~oke ~ f=om the p~oduccs l s
tn
A t t a c ~ e n t A.
PROP65
News-12875
I d e n t i t y of C h e m i c a l s . Tobacco smoke concair~s more r.han 3800 chemical
c o n s t i t u e n t s , many os w h i c h are i a r p l l c a c e d i n the cau~acion o f cancer amd/or
reproductive toxicity.
The most u s e f u l sum=u~-y o f r.he exCe~.sive s c i e n t i f i c
llcera~ure i s vol. 38 of t he ZARC Monographs on the Evaluation of the
Ca~clnogen~c R~$k of Chemicals co Sumans, entlcled "Tobacco Smokln~ ~ (IARC,
Lyon, F r a n c e : 1986); s e e oh. 3, " c o m p o s i t i o n . "
The C o v e r n o r ' s S c i e n c e A d v i s o r y Panel has recommended and t he G o v e r n o r
h a s l i s t e d " T o b a c c o smoke" as a c h e m i c a l known t o the a t a c e co c a u s e b o t h
c a n c e r and r e p r o d u c t i v e t o x i c i t y , p u r s u a n t co R ~ ] ~
and S a f e t y ~ a
Section 25249.8(a). A number o f the individual chealcal c o ~ c i C u e n ~ l o f
Cobacco smoke have been similarly listed. For purposes of =hls noclce ac
time, r.he relevant chemicals are chose which were llsced more chart 12 mo~chs
prloz co c.he date of this notice, i.e., Chose for which the warnln 6
requlremenC of Proposition 65 is presently in effect. These include chem~cal~
formally l i s t e d on e i t h e r F e b r u a r y 27, 1987, o r July I, 1987, ~ i n d i c a t e d i n
22 CCE S e c t i o n 12000. The r e l e v a n t c h e m i c a l s , each o f v h l c h I s c o n j o i n e d i n
t o b a c c o smoke, a r e i n d i c a t e d i n A t t a c h m e n t ~, t o & e r ~ e r wl~h dace o f llsCLu~
for each.
Identity of ~olacors.
The p e r s o n s r e s p o n s i b l e f o r t h e e x p o s u r e a
c o v e r e d by t h i s n o t i c e , w i t h i n t h e meaning o f F r o p o s i c i o Q 65, are ~ha
~.
m a n u f a c t u r e r s o f e a c h pcochacc l i s t e d i n A t t a c h m e n t A and the c e c i l
eelIacs-of
e a c h such p r o d u c t .
The m a n u f a c t u r e r s a r e i n d i c a t e d i n A t O n e
A. The
r e r ~ e i l s e l l e r s named i n t h i s n o t i c e a r e i n d i c a t e d i n AC~ac~benC C. Ocher
persons in the chain of distribution
o f such p r o d u c c j m~y a l s o be l e & a l l y
r e s p o n s i b l e b u c a r e noc c o v e r e d by t h i s n o t i c e a t =hie cLme.
Duration of violations.
For t h e chemicals i n At=achmen= $ thaC were
l i s t e d on F e b r u a r y 27, 1987, u n l a v s
exposures as i n d U r a t e d have bead
o c c u r r i n 8 on each day b e s i n n i n s r e b r u ~ / 27, 1988, and c o u c i n u i n & throu&h the
present.
For t h e chemicals l i s t e d on J u l y 1, 1987, u n l a v f u I e r p o s u r e s have
b e e n s i m i l a r l y o c c u r r i n g s i n c e J u l y 1, 1988. Under P r o p o s i t i o n 65, e a c h day
o f e x p o s u r e Co e a c h s u ch p r o d u c t by each v i o l a t o r ( o r , altecTmClvely, e a c h
i n d i v i d u a l s a l e o f e a c h such p r o d u c t ) c o n s t i t ~ c e s a s e p a r a t e v ~ o l a ~ i o n .
Healch and S a f e t y Code S e c t i o n 2 5 2 4 9 . 7 ( b ) .
The maximum c i v i l p e n a l t y f o r
e a c h such v i o l a t i o n i s $2500. 2d.
Absence o f c l e a r and r e a s o n a b l e y a r n i n g . None o f the products covered
by t h i s n o t i c e bears any l a b e l o r ocher i n d i c a t i o n on the package i n which i t
i s o f f e r e d f o r r e t a i l s a l e chat such p r o d u c t exposes persons to chemicals
known co the S t a t e o f C a l i f o r n i a t o cause cancer o r r e p r o d u c t i v e t o x i c i t y .
In
a d d i t i o n , none o f the same p r o d u c t s I n the scores covered by r_his n o t i c e was
offered for sale wlth any shelf label bearing any such warnir~ wlch regard to
such products. No other adequate warnlng Info~matlon was available at or near
=he p o i n t o f s a l e f o r any o f the i n d i c a t e d products a= any o f Me i n d i c a t e d
stores.
PROP65
News-12876
All products indicated by an asterisk In Attachment A ere listed with ~he
800-number system operated by r.he Ingredient Co~unlcatlon Council, Inc.; and
t h e persistent and diligent caller may eventually receive 9 recorded warnlng
message f o r each such p r o d u c t i f he or she c e l l s r-he 800 number and i s
s u ~ f t c i e n t l y p r e c i s e i n r e q u e s t i n g i n f o r m a t i o n . The ~axt o f this message i s
reproduced in Attachment D. However, ~his information is not available in
c o n j u n c t i o n w~ch t h e p r o d u c t when o f f e r e d for s a l e , i s n o t a v a i l a b l e w i t h i n
the store, is not available in prlnced form, and ~s noc o~herwlse available.
Moreover, no lis~ of produc~s associated wi~h such message is available u
p a r t of the I n g r e d i e n t Co~munlcatlon C o u n c i l ' s 800-n~l>er " I n f o r ~ m t l o n
s y s t e m , " even on r e q u e s t ; no l i s t o f c o v e r e d t o b a c c o produ~r~ i s a v a i l a b l e ;
and no c a l l e r who r e q u e s t s s
on " c i g a r s , " "pipe t o b a c c o , " " c i g a r e t t e
tobacco," "tobacco,
= or "tobacco products = r e c e i v e s any such message.
.
None o f the f o r e g o i n g c o n s t i t u t e s c l e a r and r e a s o n a b l e w a r n i n g w i ~ l n the
meaning of ~eal~h and Safery C~de S e c t i o n s 25249.6 and 25249.11(f).
Specifically, the 800 number currently in operatlon fails to provide clear and
reasonable warning to consumers.
By c o n t r a s t , i n some s t o r e s i n C a l i f o r n i a , n o n - c l ~ a z e t t e ~obacco p r o d u c t s
i n c l u d i n g t h o s e l i s ~ e d Lu A t t a c h m e n t A a r e o f f e r e d f o r s a l e i n p r o x f a i t y ~o
~arge, clearly worded shelf s i g n s which s~a~e:
Yarning:
Pipe and smoking t o b a c c o s and c i g a r s
c o n t a i n / p r o d u c e c h e m i c a l s known co the S t a t e o f
C a l i f o r r L ( a ~o c a u s e c a n c e r , and b i r ~ h d e f e c t s o r
o c h e r r e p r o d u c t i v e harm.
Individual s t o r e s d i s p l a y i n g chs
60-day notice.
s h e l f s i g n are not included v i ~ h s
r-his
Zn addition, all manufactured cigarettes sold in California bear clearly
worded warnings OD each package and in all advertls~r~ which, Inter a11a,
sca~e: "Smoklng Causes Lung Cancer .
. And May Coapllcate Pregnancy."
Knowing and Lutentlonal exposure. All exposures covered by this
n o ~ c e are bo~h knovln~ and intentional on the part of both manufacturers and
recall sellers. On or about March 15, 1988, manufacturers and/or dlscrlbutors
of non-cigarette tobacco products provided clearly worded shelf signs, as
described above, tO stores of each of the retail chains [ndlcated in
Ac~aclunent C. Each such retail chain chose not to display such shelf signs in
the scores covered by ~hls notice.
The preparation of the shelf s i ~
with
the message indicated above clearly escabllshes knowledge and Intentional
exposure on ~he parr of manufacturers; and ~he receipt of such signs clearly
establishes knowledge and In~enclonal exposure on ~he part of the retail
sellers.
PROP65
News-12877
Because of the i m p o r t a n c e of t h i s a c t i o n , and because of the p r e v i o u s l y
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 macter
under Sealch and Safety Code Section 25249.7(c). See letter from Andrea
Sheridan Ordln, ChlefAsslstant Attorney General, to The Honorable Lloyd
Conne~ly, dated March 18, 1988. Dependln~ upon Che Attorney General's S
response, ve also en~Iclpate tha~ other California prosecutors may Become
involved in aspects o f t h i s maCter o r related matters not technically covered
by c h l s n o t i c e .
I n t h s Ins~:anee. b e c a u s e o f o u r r o l e u o r i g i n a l c o - s p o n s o r s
and p r o p o n e n t s o f F r o p o s s
65 and b e c a u s e of t h e unique p r e c e d e n t s
~:portance of p r o s e c u t o r i a l actions commenced i n respor~e to t h i s n o t i c e , we
reques~ r
r~e A t t o r n e y G e n e r a l and or.her ~n~olved p r o s e c u t o r a i n d i c a t e t h a t
they will support a motion by the undersigned ents
~o intervene In ~ny
such action,
Please advise ua as soon as possible as to you: plans for in/~ia~in~
a c t i o n undor $ e c t l o n 2 5 2 4 9 . 7 ( c ) I n t h l s ma~cer. P l e a s e a l s o p r o v i d e ua v i t h
c o p i e s o f any p l e a d l n ~ s you f11e i n t h s m a t t e r and any c o a ~ c a t l o n s
yo~
ln/~taCe with any o f the aanufaccurers and/or r e t a i l .~rket chas
in
this notice.
I f we do n o t h e a r from y o u w i t h i n 60 days o f the d a t e o f r.his
l e t t e r , we w i l l p r o c e e d ~o a c t i o n p u r s u a n t co S e c c i o n 25249(4).
Respectfully submitted.
E ~ F ~ R ~ S
E FUND
By:
Carl 'Pope
Deputy C o n s e c v a t l o n D i r e c t o r
Davi~ Roe
Attorney
CAM~AI GN CALIF O ~ I A
NATURAL RESOURCES DEFENSE C,OU'NCIL
,y
Chair
Executive D i r e c t o r
AI ~eyechoE~
A t t o r n e y at L
"~ ~'~
a
~
Enclosures (4)
cc:
[ I i s t e d on proof of serviceJ
Grocer7 Manufacturers Association
9 Ingredient Communications Council.
CalLfornla Retailers A s s o c s
Cal~fornla Grocers Assoc~atlon
" ~ . ' .
~...-'.:'//o~/~
PROP65
News-12878
O
ENVIRCggMENTAL DEt ENSE FUND
Rocktidgc N~ark~ Hall
~6~ Coilczc Avenue
Oakland, CA 946111
FOR RELEASE:
An&nat 2, t9~8
11:15 a.m.
For Fucchec I n f o r m a t i o n C a L l
David Roe or Carl Pope
at (916) ~44-6906
TOI~.CCO COtI~AZ~IE$, S U P ~ S
FACs
FINF~
UNDER PROP. 65 F.NFORCF.~2r AIMED AT 800-~TH3F.R,
MISSING CAMCs WARJ~ING$ ON CIGA~ AND PIPE TOBACCO
"~ ~ ~
~-~
r_~
Envlron~.eqcal ~roups ~
o ~
acc_~
today
The f i r s t comprehensive, scacevs
a c t i o n to enforce
Proposir
65 w i l l seek an e s ~ e d
$1.3 b i l l i o n
In
p e n a l t i e s from t o b a c c o companies and the s t a ~ e ~ ~aJor
superaarke~ cha/~uf.
"ThAs s 9 d i r e c t challen&e Co r.he 800-number c h a t
p r o d u c e r s and m a r k e c a r a have been h i d i n g b e h i n d f o r the l a s t
five tonch~, t said David Roe, attorney for che Environmental
DefePJe Fund. "X~'s rime co sr
p l a y i n g h i d e - a n d - s e e k ws
c o u n t e r s ' h e a l t h , and ~o give C a l i f o r n i a n s wha~ ~hey voted
~or--real warnings on the handful of real cancer and bs
defect chreacs that they actually face."
A coaliclo n of public Interest &roups today filed
advance no,ice of their action, as required by law, and
i n v i t e d A t t o r n e y Ceneral John Van de Kemp end o t h e r
p r o s e c u t o r s to p a r t i c i p a t e . The groups include the
Environmental Defense Fund, Ss
Club, N a t u r a l Resources
Defense C o u n c i l , and Campaign C a l i f o r n A a .
The c o i l - f r e e number system, descrfbed by c r i t i c s as
~
was Invented last February by the food
s
when Proposition 65 went into effect, and requlres
customers to telephone and ask for Informaclon about each of
15,000 produces s order co r e c e i v e the h e a l t h warnings
r e q u i r e d by the new law. The system has been almos= e n c i r e l y
shunned by consumers, but s being felled on by many
manufacturers and r e c a l l e r s o f consumer produces.
PROP65
News-12879
The groups' a c t i o n Is targeted ac cs
pipe tobacco, and loose
cLgaretce tobacco produces, many of vhfch are l i s t e d uLCh the 800n~l~b~r-,~uc
~hich e r e ochervise sold vicho~t varns
Ic covers 225 tobacco produces being
s o l d tn v t o l e c i o n o f Froposit~on 65 tn e i g h t major Cals
supermarket
chain~.
"This ts a classic example of a legal gap the: ProposLcLon 65 yes
d e s i g n e d t o c l o s e , " s a i d C e r l Fope o f the $ f e r r a Club. He noted thac fedeca~
l a y r e q u i r e s c a n c e r and bLr~h d e f e c t v a r n s
on c i g a r e t t e s , hue not on
c i g a r s , p i p e t o b a c c o , or even " r o l l y o u r o ~ " c i g a r e t t e s
"Proposlcion
65 c l o s e s r.~e loopholes In e x i s t i n g coxics l a w - - t h a t ' s one reason lg was
n e c e s s a r y , " Pope s a i d .
~'ne Ar
7 0 e n e r a l and o t h e r p r o s e c u t o r s r e c e i v ~ n g r.he groups' Hor~al
no~tce have 60 d,tys ~o decLde rhea.her to prosecute. A f t e r thag time Che groups
t h e m s e l v e s may sue r.he v i o l a t o r s under P r o p o s ~ c i o n 6 S ' s c i t i z e n s u i t
provlslon.
PROP65
{60-c~7 n o c i c e ,
News-12880
$/2/88]
A~'TACI~ A
~v~JF^~--as
shorn on
( p a r e n t coc~oracLon s h o r n Ln
parenr.heees)
(produc~s shovu vlr.h - . - are
l i s ~ e d vs
r.he 800 n ~ b e r )
American Tobacco Cou~any
Half and Hals c f g a r e c c e tobacco
Bull DurhAa smokin& cobacco
Paladln Black C~erry p~pe tobacco
Avancl C i g a r Compan7
Harca Pe~rt C1&areCco c i g a r s .
T o s c a n e l l i Ha~ca RossL cs
Bensen ~ n ~ e r u a c l o n a l
Skandinavik Danish pipe r
Coffee
Azoaacs
Racural
Hi.cure
~erLng
(Jno. H. S v i s h e r & Son. I n ~ . )
* 3 . r l n g cs
*
Coronadu
*
Ia~er~als
*
P1Lzu
*
BIack J a c k
c:~lo,~,
*Ri&olecco Tam c i g a r s .
*
B1ackArrov
*
PaI~e Grande
*
BIack Jack
PROP65
Brovn e n d Y l l l 1 - ~ s o n
(~l'~S Inc.)
News-12881
*~ugler smoking tobacco
~~
*S~.r ~;alcer R ~ l e ~ h p~pe tobacco
*
Regular
*
*
*
*
Aromar
Cherry
' Light Aromatic
Spec }.al M i x cuc'e
*K~te Menr.holated c t g a r e t ~ e
Consol~daced
CCgar Co=p,ny
*~.~ech ~ s c e r s
ci~ers
*
Pres~ene
*
P~ecela
*
Csd~=
*
C4~ec T i p
*
Cameroon Z l i ~ e
*
F41coc~
*
Coror~t De Lu:xe
*
Cameroon I A t e
*
Cameroon L ~ t e ~ , ~ i f ' f s
*
Cameroon I,~is
*Dutch Treats little
ci&&rs
*
[blue package]
*
Pipe Azoma
*
Kenchol
*
Sw eet
*ATC G r e n a d L e r s c~gara
*
P a n a t e Z ~ De I.uxe
*
Classic Coronas
*
I.~,',-clales
*
K a t e : e l Cs=eroon Wrapper
*
*
KacuraI CandeIa ~ a p p e =
*
*I..a
*E&
*
Callantes
Erase
Coror~ ~ i f f # lictle r163
P~oducto c f g a r e
Blunts
*
?urlcano Finos
Favor~tas
*
(~eer~.s
*
*Ben Frankl~n c i g a r s
*
Slunts
*
Perf'ecto
*Sall plpe tobacco
*
Regular
*
Aromatlc
*
Natural
*
Mild Cavendlsh
*Black Tie tobacco
tobacco
PROP65
C o n s o l i d a t e d Cigar Company
[conctnued]
*e,r
,lze ~d" e,~,A.,i" ;::?~;,i-.
~Muriel c1&ar~
*
*
*
*
Coronella
Regular
Ps
Aroma
Sweet
*
{plas
*
A~cclps
*
Henchol
*
Mur~el
*
TIp C ~ g a r i l l o s
*
Sweet C i g a r i l l o s
*Rof ~ o
Cuesca Rey Incernaclonal
Douve
Sweecs
cigars
*
~anker8
*
Falco~
*CuesCa l~ey Tdus c i g a r s
Egbercs
Drum cigareCr~e tobacco
Amphora pipe cobacco
P./ch Aroaa
Fu/1 Aroma
Regular
(UnAced S t a t e s Tobacco Company)
Mild Caven4~sh
Black Cavends
Aroa~ Fore
Mild Aroma
U l t r a Mild Cavends
U l t r a Mild
C a r c i a Y Vega
( G e n e r a l C i g a r Company)
News-12882
* G a r c l a y Vega c i g a r s
*
s163
Coconas
*
PanacellM
*
P a n a t e l l a De h ~ e
*
Tips
*
EIe&anCea
*
Callances
*
~rhL~fa
*
Cran Premto
*
*
Bravura
Cigarillos
*
*
Chico
*
Degado Panecela
Preslden~e
*
Cranadas
*
Mlnla~res
PROP65
...
G e n e r a l CigAr Corn?any
9 c o m p a n y o f Culbro C o r p o r a t i o n
News-12883
~"
*Tlparillo cigars
*
Mild Blend
*
A r o ~ c i c Blend
*
Menthol
*~Jhi~e 0vl c i g a r s
*
New Yorker
*
Invir~Ible
*
PaneCela Delu=e
*
~U't~ 9 r s
*
*
Hfn~acures
Corouecca l~eai- c~p
*
D~eI-~p
..
~Vm. ? e n n c i g a r s
*
.
*
*
BrAVes
Pan~celas
Perfectos
glllov
rips
~TiJuana Smalls little clga~s
*
ChAtty
*
Menthol
Regular
Aromatic
*Robert lkarns cigars
*
BlACk gacch
*
Cigarillos
*
.
HavA C(Ha~a:aIc~a/PhilI lea C i g a r s )
*HAvaCampa J e v e l s CigArS
HAVSCampA J e v e l s $vesC Cigars
Argosy Black pipe CobAcco
Bond Screec pipe tobacco
House of ~s
CigArS
House o f g i n d s o r I n c .
PslJas
Fanatellu
F s l ~ Ucss
Sportsman
~q ~,..-~....'
~.~
Perfecto Carrie cigars
Pal~a Royal
Gore ~"lo r s
Corona Large
PROP65
john M i d d l e c o n
News-12884
* P r i n c e A l b e r t pipe coba~co:~.
* C a r t e r H a l l pipe tobacco
*Apple pipe tobacco
* H i c k o ~ smokln~ cobacco
*Mlddlecon's pEpe tobacco
*
Cherry Blend
*
Fine $~ok/n~ Tobacco
*
Cherry Cavendt~h
*
Cold And Mild
*
Black , ~ d K t l d
*Middlecon's c e d a r s
Inc.
*
*
.Cherry Blend Cigars
Cold A~d 811d
*
Black/u~dM/Id
"
*Kentucky Club Conclnen~al Blend
plpe cobacco
Jno.
H. $ v l s h e r
&
Son.
Inc.
.
*
.
SveeCs c i g ~ s
Ferfer
Coronella
~ood T i p
*
SlLas
*$vs
.
L~ccle CigLrs
.
Cigarillos
*
Tip Cigarillos
*
Sweet Coronella
*Santa Fe cl~ars
.
Fairmooc
.
Paccis8
.
Pane~ela
*King Edward c i g a r s
.
Imv+..nc
ible
.
F~cela
.
Specials
.
l~rlals
.
Superior
*Opc Lmo c i g a r s
.
Adalral
.
.
.
Opctao
Spores
Fu~.t~a
Universal
.
{~',--,
~
P~,~%" ~<~.'r
.~,c
PROP65
~ane t l m t Cad
News-12885
*r
*
*
Slack pipe coba~60 = ~ Cold
ReEular
*
*
Supre~m
Royal
*
Rlch Slack
*Don ?ablo LA&Rc pipe tobacco
La~us and 8coChec
(Lane LlaAced)
*Edgeworth Eeady-Ru~bed papa r
*F.xec'~Cs Ms
$veec BAtch
$ou~ara
Lor111ard
Ecik cs
Kenchol r l l c e r
Nacu.cal
Cherty
3e~'veen The Aces l i t t l e
Phillies
Cigar Co.
(Hava~ampa/Phillles Cl&acs)
cig~Lcj
* r n i l l i e s ci~a.cs
*
Cheroot
*
Tl~m
*
Blunc
*
Perfecto
P~rckeccon Tobacco
Velvet pipe tobacco
B l a c k Clippec Black ~ v e n d i s h
smokln8 tobacco
R.J. Rey'nolds
(~Nablsco)
*Carmec H a l l ps
Republic Tobacco Co.
~oyaI Faccocfes
(ConsoIs
Cobacco
Top ci&arecce tobacco
*Flyin~ Dutch=an pipe tobacco
Cigar Company)
PROP65
Sucllff
Tobacco Co=pany
w
*Henries 81end s~oklng ~ob~-~- I *Old ~rand Dad Cavend~.$h amoklr~
tobacco
*Kix~ure 79 smoking tobacco
*
Cherry Bland
*
*
Swedish Tobacco Company
News-12886
[pla~.]
Cherry 3raady
~oricum Rlff ps
tobacco
Riff O~t Mild TexL-ure
Rum
Whtsby
Vltrali~hc
Cherry
81ack ~ v e n d i s h
Chert7 Cavead~sh
Golden Cavendisb
Cortez CoronL~as cigars
Thrifty
(ConsollcL~ed Cigar C o . )
UriC.ted Scaces Tobacco Company.
*Pipe Tobacco
*
Gold4u ~ r l e y
*
Black C4rvendish
*
MLld VZrgLnZa
*
Sveec CavendZsh
*
Black and Gold Bu.rle 7
*
~ c h Golden Mixture
Sweet 2 u l Crooks ~oIs Bros.
SveeC R ~ Cro~kecces
~olfcut Crook~ t~es
Zig 7~g Premium c i g a r e t t e ~obacco
PROP65
News-12887
( 6 0 - d ~ y notice, 8/2/88]
ATTACHMENT 1~
Chemfcal* found in r
smoke
listed
AcrTloni~rlle
July 1, 1987
4-Amlnoblphenyl
February 27, I987
Benz[alanchracene
July 1, 1987
~en~ene
FebcuAcy 27, 1987
Senzo[b]fluoranchene
July 1, 1987
Benzo[J]L~.uoranChene
July 1, 1987
Benzo[k]fluoranchene
July i, 1987
Senco[a]py-cene
July I. I987
2-Naph~hylamlne
Februacy 27, 1987
Vinyl Chloride
February 27, 1987
*includes only chemicals l i s t e d prior co Au~x,st 1, 1987.
See IARC Mono~raohs on the ~
o ~ h e Caar._~o~en~r Risk of
Chemicals ~o Humans, voi. 38 "Tobacco $~oktng ~ (/ARC, Lyon, France: 1986),
Section 3, "Chemical composfr
PROP65
[60-day n o c l c e .
News-12888
8/2/881
a TTAc'~ENT C
of R e t a i l ~ a [ n s
~
]~y 60-day
Alberr~ou' s Inc.
Alpha B e t a Co~pany
Lucky S c o r e s Inc.
Zalay' s
Ralphs Grocery Company
o
Safeway S~ores Inc.
Thrlf~y Dru8 and Discoun~ Scores
~orts G r o c e r y Co.
[60-day n o t i c e .
PROP65
News-12889
s/2/sa}
^TTAC~ENT D
o f Recorded Message
[The f o l l o v t n 8 1~ t h e c o m p l e t e t e x t o f t h e p r e - r e c o r d e d v a r u t n g message
avallable through the 800-number admlnlscered b y the Zr~reds
Cou~unlcaclon
Council, Inc. (800) 431-6565. This message is associated wlch each of c.he
products IdenClfied wlch an asterisk in Attachment A. IC is played, over c.he
telephone l~ne, when a caller successfully Idenclfs
one of such products by
specific brand name. No such warning Is played If a caller requests
lrL~ocmaCion on " c i g a r s , " "pipe Cobacco," " c i g a r i l l o s , " "c~garec~e tobacco,"
"tobacco," or any product d e s c r i p t i o n ocher than s p e c i f i c name brand.
[NOTE: s l l g h c v a r i a t i o n s Ln t h e s p e c i f i c b r a n d name r e q u e s t e d ( e . g . ,
"William Penn" cigars lrcscead o f "Vm. Penn" c i g a r s ; "AyC Grenadier c i g a r s "
instead of "Antonio y Cleopatra Grenadier clgars') can result in belng
i n f o r m e d chac t h e p r o d u c t i s " n o c l i s t e d v t c h t h e ICC aC t h i s r i m e . " In
addLC~on, some t o b a c c o products have d i f f e r e n t 1Lsc~nf~ f o r d i f f e r e n t package .
s i z e s a n d / o r pac~caSe Cymes of t h e i d e n t i c a l p r o d u c t ( e . g . , C a p t a i n B l a c k
p i p e t o b a c c o ) and cJle c a l l e r mu.qC s p e c i f y vhs
s i z e and package cTpe i n o r d e r
Co r e c e i v e t h e r e c o r d e d ~ e s s a g e . ]
TEXT:
"The SCare o f C a l i f o c r L t a r e q u i r e s chac t h e f o l l o w l n $ s t a t e m e n t b e
g~ven co y o u . g a m i n g : This p r o d u c t c o n t a i n s c h e m i c a l s known co t h e
"Scare o f C a l i f o r n i a Co c a u s e c a n c e r , b i r ~ h d e f , c c s , o r - o c h e r r e p r o d u c t i v e
harm. For further s
about chls product, please stay on the
llne and an operator vlll asslsc you."
[ I f a d d i t i o n a l i n f o r m a t i o n s requested, in some cases the operator v111
provide the caller with a roll-free number to call the manufacturer. No
ocher information is provided, and the call is then te~inaced.]
PROP65
News-12890
Pursuant To The Provisions
Of The California Health &
SafetyCode:
WARNING:Pipe and Smoking
Tobaccos and Cigars Conta /
Produce Chemicals KnownTo
The State OfCalifornia To
Cause Cancer, and Birth
Defects Or Other Reproductive
,~.
r
..
F
"
.
,,
PROP65
News-12891

PROP65 News-12845 DAVID S. MACCUISH (State Bar No. 054024

Transcription

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