Center For Safety I st, Incorporated

Transcription

© Prop 65 News. All Rights Reserved.
PROP65
News-33353
Center For
Environmental
Health
VII
Safety I st,
Incorporated
PROP65
"Eric S. Somers, State BarNo. 139050
Mark N. Todzo, State Bar No. 168389
Todd E Robins, State Bar No. 191853
LEXINGTON LAW GROUP, LLP
151 Vermont Street, Ste. l lA
San Francisco, CA 94103
Tel. (415) 554-3520
Fax (415) 554-3521
6
ENDORSED
s _ FILED
an PranclsGo Count~ Superior Court
OCT1-B2000~:
GORDON PARK-LI, Clerk
BY:,
Attorneys for Plaintiff
CENTER FOR ENVIRONMENTAL HEALTH
PLAf.I I
r' ' T9
7
STATUS
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News-33354
J MAR
JUN P. PANELO
Deputy Clerk
2 3--200]
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SUPERIOR COURT OF CALIFORNIA
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IN AND FOR THE COUNTY OF SAN FRANCISCO
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12
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CENTER FOR ENVIRONMENTAL
HEALTH, a non-profit corporation; and
PlaintiffDOES 1 through 10,000, inclusive,
14
Plaintiffs,
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18
I
COMPLAINT FOR INJUNCTIVE
RELIEF AND CIVIL PENALTIES
V.
16
17
r
Health & Safety Code w
et seq.;
Bus. & Prof. Code w
et seq.
SAFETY 1", E~4C.; and Defendant DOES 1
through 200, inclusive,
Defendants.
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25
26
27
28
Comp!m,
(Other)
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PROP65
News-33355
Plaintiffs, by and through their counsel, hereby allege the following:
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INTRODUCTION
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1.
This complaint seeks to remedy defendants' continuing failure to warn
4
individuals in California that they are being exposed to lead and lead compounds (collectively
5
referred to herein as "lead"), chemicals known to the State of California to cause cancer, birth
6
defects and other reproductive harm. Such exposures have occurred, and continue to occur,
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through the sale and use of defendants' baby monitors made with plastic parts that contain lead
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(the "Products"). Lead is found in the cords and other parts of the Products that are made of
9
plastic. Lead from the Products comes into contact with the skin when people use or handle the
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11
Products. Lead from the Products is ingested when people touch their hands to their mouths after
using or handling such Products.
2.
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Eead'i~'especially hazardous to children and pregnant women. As these
Products are designed for use in children's bedrooms and playrooms, and are designed for use by
parents, including women who may be pregnant with other children, lead exposures from these
14
15
Products poses a particular hazard. Through the intended use of the Products, adults including
pregnant women, children and infants who use or touch the Products or touch people who have
16
used or touched the Products, are exposed to lead, chemicals which are known to cause cancer,
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birth defects and other reproductive harm, as well as other serious adverse health effects
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including brain damage.
PARTIES
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3.
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corporation dedicated to protecting the environment, improving human health and supporting
environmentally sound practices. CEH is based in Oakland and incorporated under the laws of
the State of California CEH is a "person" within the meaning of California Health & Safety
Code w
24
25
Plaintiff Center For Environmental Health ("CEI-F') is a non-profit
l(a) 2 and is bringing this enforcement action in the public interest pursuant to
and on behalf of the general public pursuant to Business &
Professions Code w17204.
26
4.
PlalntiffDOES 1 through 10,000 are each a "person" under Business &
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All statutory references are to California Codes unless otherwise indicated.
Comphmt
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Professions Code w167
2
defendants who have purchased the Products since October 17, 1996.
5.
3
4
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and 17535. PlaimiffDOES 1 through 10,000 are customers of
The true names ofPlalntiffDOES 1 through 10,000 are unknown to
Plaintiff CEH at this time. When their identities are ascertained, the complaint shall be amended
to reflect their true names.
6.
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News-33356
The term "Plaintiffs," as used herein, is defined to mean PlalntiffCEH, as
well as all Plaintiff DOES referred to in paragraphs 2-.4.
7
7.
Defendant SAFETY 1", INC. is a person in the course of doing business
8
within the meaning of Health & Safety Code w
9
Business & Professions Code w17201. Defendant SAFETY 1", INC. manufactures, distributes,
10
markets and/or sells the Products for use in California. An example of one of the Products sold
11
by SAFETY 1n, INC. is the Safety 1'~ Crystal Clear Monitor.
8.
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15
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Defendant DOES 1-100 ("UCL DEFENDANTS") are each a person in the
course of doing business within the meaning of Health & Safety Code w
and a person
within the meaning of Business & Professions Code w17201. The UCL DEFENDANTS
manufacture, distribute and/or sell the Products for sale or use in California.
9.
16
and a person within the meaning of
Defendant DOES 101-200 are each a person in the course of doing
business within the meaning of Health & Safety Code w
and a person within the
meaning of Business & Professions Code w17201. Defendant DOES 101-200 manufacture,
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distribute and/or sell the Products for sale or use in California. Defendant DOES 101-200 and
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SAFETY 1", INC. are referred to herein as the "PROPOSITION 65 DEFENDANTS."
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10.
The true names of Defendant DOES 1 through 200 are unknown to
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Plaintiffs at this time. When their idemities are ascertained, the complaint shall be amended to
22
reflect their true names.
l I.
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Defendant DOES l through 200.
STATUTORY AND FACTUAL BACKGROUND
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12.
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The term "Defendants," as used herein means SAFETY I", INC., and
The People of the State of California have declared by referendum under
Proposition 65 their right "[t]o be informed about exposures to chemicals that cause cancer, birth
defects and other reproductive harm." Proposition 65, w
28
C~l~t
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PROP65
1
13.
News-33357
To effectuate this goal, Proposition 65 requires that individuals be
2
provided with a "clear and reasonable warning" before being exposed to chemicals fisted by the
3
State of California as causing cancer or birth defects and other reproductive harm unless the
4
business responsible for the exposure can prove that it fits within a statutory exemption. Health
5
& Safety Code w
states, in pertinent pan:
No person in the course of doing business shall knowingly and
intentionally expose any individual to a chemical known to the
state to cause cancer or reproductive toxicity without first giving
clear and reasonable warning to such individual....
6
7
8
14.
9
10
Under Proposition 65, an exposure is "knowing" where the party
responsible for such exposure has:
knowledge of the fact that a discharge of, release of, or exposure to
a chemical listed pursuant to Health & Safety Code w
is
occurring No knowledge that the discharge, release or exposure is
urdaw-ful is required.
11
12
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14
15
22 CCR w12201 (d). This knowledge may be either actual or constructive. Final Statement of
Reasons, 22 California Code of P,,egulations Division 2, Section 12201.
15.
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chemical known to cause reproductive toxicity. Lead became subject to the Proposition 65 "clear
and reasonable" reproductive toxicity warning requirement one year later beginning on February
27, 1988. 22 California Code of Regulations w
16.
20
21
22
23
24
27
et s e q
On October 1, 1992, the State of California officially listed lead and lead
compounds as chemicals known to cause cancer. Lead and lead compounds became subject to
the Proposition 65 "clear and reasonable" carcinogen warning one year later beginning on
October 1, 1993. 22 California Code of Regulations w
seq.
17.
25
26
On February 27, 1987, the State of California officially listed lead as a
Plaintiffs are informed and believe, and based on such information and
belief allege, that pans and components of the Products made of plastic, including, but not
limited to cords, contain lead.
18.
28
C~nplAi,~t
Young children are especially susceptible to lead's toxic effects. In fact,
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PROP65
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lead is now recognized as the single most significant environmental health threat to American
children. Measuring Lead Exposure m Infants, Children, and Other Sensitive Populaaons,
National Research Council, 1993, p. 1, Preventing Lead Poisoning In Young Children, Centers
for Disease Control, October 1991. Children show a greater sensitivity to lead's effects than do
adults. Adverse health impacts from lead exposure generally occur in children at lower blood
lead levels than in adults. Children absorb and retain more lead in proportion to their weight than
do adults. Young children also show a greater prevalence of iron deficiency, a condition that can
increase gastrointestinal absorption of lead. The body accumulates lead over a lifetime and
9
releases it slowly, so even small doses received in childhood, over time, can cause adverse health
L0 impacts, including but not limited to reproductive toxicity, later in life. For example, in times of
11
physiological stress, such as pregnancy, the body can mobiliTe accumulated stores of lead in
12
tissue and bone, thereby increasing the level of lead in the blood and increasing the risk of harm
13
to the fetus. Case Studies in Environmental Medicine: Lead Toxicity, U.S. Department of Health
14
and Human Services, Public Health Service, U.S. Agency for Toxic Substances and Disease
15
Registry (ATSDR), 1995. The plague of childhood lead poisoning is not only deadly but it is
16
pervasive, The California Department of Health Services estimates that over 130,000 children in
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California between the ages of one and five have elevated blood lead levels, 40,000 of which
18
require active case management.
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19.
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belief allege, that lead fr0m-theProducts comes into contact with the skin when people, including
21
infants, use or handle the Products. Lead from the Products is ingested when people touch their
22
hands to their mouths after using or handling such Products. Infants are also exposed after their
23
parents or other caretakers use or touch the Products and then touch, hold, feed or otherwise take
24
care of them
20.
25
26
belief allege, that Defendants know that the Products contain lead and that people are exposed to
27
lead through the intended use of the Products.
21.
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Complaint
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PROP65
News-33359
1
belief allege, that Defendants intend that the Products are used in a manner that results in users of
2
the Products being exposed to the lead contained in the Products.
3
22.
Defendants have, since on or after February 27, 1988, failed, and continue
4
to fail, to provide clear and reasonable warnings regarding the reproductive toxicity,
5
carcinogenicity or any other adverse health effects caused by exposure to lead from use of the
6
Products. Moreover, Defendants have failed, and continue to fail, to disclose the fact that the
7
Products contain lead and will expose people to lead.
23.
8
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Any person has standing to enforce violations of Proposition 65 provided
that such person has supplied the requisite public enforcers with a valid 60-Day Notice of
10
Violation and such public enforcers are not diligently prosecuting the action within their
11
respective jurisdictions within such time. Health & Safety Code w
12
24.
On or about June 12, 2000, CEH provided a 60-Day "Notice of Violation
13
of Proposition 65" (the "Notice") to the California Attorney General, the District Attorneys of
14
every county in California, the City Attorneys of every California city with a population greater
15
than 750,000, and to Defendant SAFETY 1", INC. In compliance with 22 CCR w
16
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address of the violator; the statute violated; the time period during which violations occurred; the
18
routes of exposure to lead from the Products and specific descriptions of the violations, including
19
product categories and specific examples of Products sold and used in violation of Proposition
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65, as well as identifying lead, the specific Proposition 65-listed chemical that is the subject of
21
the violation described in the Notice.
22
25.
and
the Notice included the following information: the name and
On information and belief, Plaintiffs allege that the appropriate public
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enforcement agencies have failed to commence and diligently prosecute a cause of action under
24
25
Notice and herein.
26
26.
et seq.
against Defendants based on the claims asserted in the
Proposition 65 provides for injunctive relief and civil penalties up to
27
$2,500 per day for each violation of Proposition 65. An action for injunctive relief and
28
restitution is also specifically authorized under Business & Professions Code w17203.
Compl~mt
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27.
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PROP65
News-33360
Business & Professions Code 817205 provides that "the remedies or
2
penalties provided by this chapter are cumulative to each other and to the remedies or penalties
3
available under all other laws of this state."
28.
4
Defendants failure to provide proper warnings in violation of Proposition
5
65 constitutes an act of unfair competition which may be enjoined by the Court pursuant to
6
Health & Safety Code 825249.7(a) and Business & Professions Code 817203.
29.
7
Plaintiffs seek injunctive relief to compel defendants to provide California
8
purchasers and users of the Products with clear and reasonable warnings regarding certain known
9
health hazards of exposure to chemicals listed under Proposition 65 that are contained in the
10
Products, as well as to disclose the presence and identity of such chemicals.
30.
11
Plaintiffs also seek civil penalties against defendants for their violations of
12
Proposition 65, as provided for by Health & Safety Code 825249.7(b), and restitution, as
13
provided for by Health & Safety Code 825249.7 and Business & Professions Code w17203.
dlSRISDICTION AND VENUE
14
31.
15
The Court has jurisdiction over this action pursuant to Health & Safety
16
Code 825249.7, and Business & Professions Code 8817203 and 17204, which allow enforcement
17
in any court of competent jurisdiction. The California Superior Court has jurisdiction over this
18
action pursuant to California Constitution Article VI, Section 10, which grants the Superior
19
Court "original jurisdiction in all cases except those given by statute to other trial courts." The
20
statutes under which this action is brought do not grant jurisdiction to any other trial court.
32.
21
This Court has jurisdiction over Defendants because, based on information
22
and belief, each is a corporation that has sufficient minimum contacts in California, is a citizen of
23
California, or otherwise intentionally avails itself of the California market either through the
24
distribution or sale of the Products in the State of California or by having a manufacturing,
25
distribution or other facility located in California so as to render the exercise of jurisdiction over
26
it by the California courts consistent with traditional notions of fair play and substantial justice.,
3 3.
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Venue is proper in the San Francisco Superior Court because one or more
of the violations arise in the County of San Francisco.
Camplmt
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News-33361
FIRST CAUSE OF ACTION
2
(Violations of the Health & Safety Code w
By the PROPOSITION 65 DEFENDANTS)
3
Injunctive Relief
4
5
PROP65
34.
Plaintiffs reallege and incorporate by reference as if specifically set forth
herein Paragraphs l through 33 inclusive.
6
35.
By placing the Products into the stream of commerce, the PROPOSITION
7
65 DEFENDANTS are each persons in the course of doing business within the meaning of
8
Proposition 65.
9
36.
The PROPOSITION 65 DEFENDANTS know that users of the Products
10
are exposed to lead through the reasonably foreseeable use of the Products. The PROPOSITION
II
65 DEFENDANTS intend that the Products are used in a manner that results in users ofthe
12
Products and those who come into contact with such users being exposed to lead from the
13
Products.
14
37.
The PROPOSITION 65 DEFENDANTS have failed, and continue to fail,
15
to provide clear and reasonable warning regarding the carcinogenicity and reproductive toxicity
16
of lead to those who are exposed to lead fi'om the Products.
17
18
38.
Lead is a chemical listed by the State of California as known to cause
cancer, birth defects and other reproductive harm.
19
39.
By committing the acts alleged above, the PROPOSITION 65
20
DEFENDANTS have, since on or after February 27, 1988, violated Proposition 65 by knowingly
21
and intentionally exposing individuals to lead without first giving clear and reasonable Warnin~
22
regarding the carcinogenicity and reproductive toxicity of lead to such individuals.
23
Wherefore, Plaintiff prays judgement against Defendants as set forth hereinafter
24
SECOND CAUSE OF ACTION
25
(Violations of the Health & Safety Code w
By the PROPOSITION 65 DEFENDANTS)
Penalties
26
27
28
40.
Plainti~ reallege and incorporate by reference as it"specifically set forth
herein Para~aphs 1 through 39 inclusive.
Compl~nt
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4 I.
PROP65
News-33362
By placing the Products into the stream of commerce, the PROPOSITION
2
65 DEFEN'DA,\'TS are each persons in the course of doing business within the meaning of
3
Proposition 65.
4
42.
The PROPOSITION 65 DEFENDANTS know that users of the Products
5
are exposed to lead through the reasonably foreseeable use of the Products. The PROPOSITION
6
65 DEFENDA_N'TS intend that the Products are used in a manner that results in users of the
7
Products and those who come into contact with such users being exposed to lead from the
8
Products.
9
43.
The PROPOSITION 65 DEFENDANTS have failed, and continue to fail,
10
to provide clear and reasonable warning regarding the carcinogenic'iv/and reproductive toxicity
11
of lead to those who are exposed to lead from the Products.
12
13
44.
Lead is a chemical listed by the State of California as known to cause
cancer, birth detects and other reproductive harm.
14
45.
By committing the acts alleged above, the PROPOSITION 65
15
DEFENDANTS have, since on or after February 27, 1988, violated Proposition 65 by knowingly
16
and intentionally exposing individuals to lead without first giving clear and reasonable warning
17
regarding the carcinogenicity and reproductive toxicity of lead to such individuals.
18
Wherefore, Plalntiffprays judgement against Defendants as set forth hereinafter.
19
CAUSE OF .ACTION
20
(Violations of Business & Professions Code w
et seq.
Based On Commission Of Unlawful Acts Of Violating
By All Defendants)
21
9
Injuncfive Relief
22
46
Plaintiffsreallegeand incorporate by reference as ifspecificallyset forth
23
herein Para6aphs 1 through 45 inclusive.
24
47.
Since on or afterFebruary 27, 1988, Defendants have engaged in conduct
25
which violatesHealth & Safety Code w
et seq. This conduct includes intemionally
26
placing Products into commerce which Defendants know will expose individualsto lead without
27
firstproviding such individualswith a clearand reasonable warning regarding the
28
Cas:s:pl~t
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PROP65
News-33363
:
carcinogenicity and reproductive toxicity of lead.
2
48.
By committing the acts alleged above, Defendants have engaged in an
3
unlawful business practice which constitutes unfair competition within the meaning of Business
4
& Professions Code w17200.
5
Wherefore, Plaintiff prays judgement against Defendants as set forth hereinafter.
6
FOURTH CAUSE OF ACTION
7
(Violations of Business & Professions Codew
et seq.
Based On Commission Of Unlawful Acts Of Violating
By All Defendants)
Notification, Restitution and Other Relief
8
9
49.
10
herein Paragraphs 1 through 48 inclusive.
11
50.
12
Since on or H e r February 27, 1988, Defendants have engaged in conduct
et seq. This conduct includes intentionally
which violates Health & Safety Code w
13
14
placing Products into commerce which Defendants know will expose individuals to lead without
first providing such individuals with a clear and reasonable warning regarding the
15
carcinogenicity and reproductive toxicity of lead.
16
51.
17
18
By committing the acts alleged above, Defendants have engaged in an
unlawful business practice which constitutes unfair competition within the meaning of Business
19
Wherefore, Plaintiff prays judgement, against Defendants as set forth hereinafter.
20
21
22
FIFTH CAUSE OF ACTION(Violations of Business & Professions Code w
Based on Unfair Acts Of Knowingly, Intentionally and
Unnecessarily Exposing Individuals ToLead By All Defendants)
Injunctive Relief
23
24
52.
et seq.
Plaintiffs reaUege and incorporate by reference as if specifically set forth
25
53.
Defendants place the Products into the stream of commerce with
26
knowledge that, through the intended use of such Products, individuals who use or come into
27
contact with those who use the Products, including pregnant women, infants and young children,
28
will be exposed to lead.
Ccmplmt
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54.
PROP65
News-33364
Defendants know or should know that lead is known to cause cancer
and/or birth defects or other reproductive harm as well as other adverse health effects including,
but not limited to, learning disabilities, behavioral problems, brain damage, and at very high
levels, seizures, coma and even death.
55.
Defendants know or should know that pregnant women, infants and young
6
children, around whom the Products are intended to be used, constitute the segment of the
7
population most vulnerable to the toxic effects of lead. Defendants also know or should know
8
that childhood lead exposures accumulate in the body and can lead to adverse health effects,
9
including but not limited to reproductive harm, later in life. Nevertheless, Defendants have
10
failed to inform consumers and users of the Products of these health hazards. Moreover,
11
Defendants have failed to even disclose that lead is contained in the Products.
12
56.
The conduct described above offends established pubLic policy, is immoral
13
and unethical. Consequently, Defendants have engaged in and continue to engage in unfair acts
14
pursuant to Business & Professions Code w17200 et seq.
15
57.
By committing the acts alleged above Defendants have engaged in unfair
16
business practices which constitute unfair competition within the meaning of Business &
17
Professions Code w17200 et seq.
18
19
20
21
SIXTH CAUSE OF ACTION(Violations of Business & Professions Code w
Based on Unfair Acts Of Knowingly, Intentionally and Unnecessarily
Exposing Individuals To Lead By All Defendants)
No6fication, Restitun'on and Other Relief
58.
et seq.
Plaintiffs reallege and incorporate by reference as if specificaLly set forth
22
23
59.
Defendants place the Products into the stream of commerce with
24
knowledge that, through the intended use of such Products, individuals who use or come into
25
contact with those who use the Products, including pregnant women, infants and young children,
26
will be exposed to lead.
27
60.
Defendants know or should know that lead is known to ~ : ~ a n c e r
28
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PROP65
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1
and/or birth defects or other reproductive harm as well as other adverse health effects including,
2
but not limited to, learning disabilities, behavioral problems, brain damage, and at very high
3
levels, seizures, coma and even death.
4
61.
Defendants know or should know that pregnant women, infants and young
5
children, around whom the Products are intended to be used, constitute the segment of the
6
population most vulnerable to the toxic effects of lead. Defendants also know or should know
7
that childhood lead exposures accumulate in the body and can lead to adverse health effects,
8
including but not limited to reproductive harm, later in life. Nevertheless, Defendants have
9
failed to inform consumers and users of the Products of these health hazards. Moreover,
10
Defendants have failed to even disclose that lead is contained in the Products.
I1
62.
The conduct described above offends established public policy, is immoral
12
and unethical. Consequently, Defendants have engaged in and continue to engage in unfair acts
13
pursuant to Business & Professions Code w17200 et seq.
14
63.
By committing the acts alleged above Defendants have engaged in unfair
15
business practices which constitute unfair competition within the meaning of Business &
16
Professions Code w17200 et seq.
17
18
SEVENTH CAUSE OF ACTION
19
et seq. Based On Fraudulent Acts Of
Deceptively Marketing Lead-Containing Products With No Warning Or Even Disclosure
Regarding Presence Of Lead In The Products By All Defendants)
20
Injunctive Relief
21
64.
22
23
65.
24
25
26
27
28
Plainfiff_~reaUege and incorporate by reference as if specifically set forth
Defendants' failure to disclose the presence of lead in the Products to users
of the Products is likely to deceive the general public in California regarding the presence of lead
in the Products. Moreover, Defendants' failure to inform users of the Products that such
Products contain lead, a chemical known to cancer, reproductive "harm and other adverse health
effects, is likely to deceive the general public in California regarding the tmure and rafety of
~la/at
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PROP65
News-33366
1 i Defendants' Products. Further, Defendants' marketing of the Products in a fashion which is
2 likely to create expectations of safety and well-being among users of the Products, is likely to
3
deceive the general public in California regarding the nature and safety of Defendants' Products.
4
66.
By committing the acts alleged above Defendants have engaged in
5
fraudulent business practices which constitute unfair competition within the meaning of Business
6
7
9Wherefore, Plaintiff prays judgement against Defendants as set forth hereinafter.
8
9
10
11
EIGHTH CAUSE OF ACTION
etseq. Based On Fraudulent Acts Of
Deceptively Marketing Lead-Containing Products WithNo Warning Or Even Disclosure
Regarding Presence Of Lead In The Products By All Defendants)
Notification, Restitution and Other Relief
67,
12
13
68.
14
15
16
17
18
19
20
21
24
Defendants' failure to disclose the presence of lead in the Products to users
&the Products is likely to deceive the general public in California regarding the presence of lead
in the Products. Moreover, Defendants' failure to inform users of the Products that such
Products contain lead, a chemical known to cancer, reproductive harm and other adverse health
effects, is likely to deceive the general public in California regarding the nature and safety of
Defendants' Products. Further, Defendants' marketing &the Products in a fashion which is
likely to create expectations of safety and well-being among users of the Products, is likely to
deceive the general public in California regarding the nature and safety of Defendants' Products.
69.
22
23
By committing the acts alleged above Defendants have engaged in
fraudulent business practices which constitute unfair competition within the meaning &Business
& Professions Codew 17200.
.PRAYER FOR RELEgT
25
Wherefore, plaintiff prays for judgment against defendants as follows:
26
Pursuant to the First Cause of Action, plaintiffprays:
27
1.
28
Compla/nt
That the Court, pursuant to Health & Safety Code w
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PROP65
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1
preliminarily and permanently enjoin Defendants fi'om offering the Products for sale in
2
California without providing clear and reasonable warnings regarding the carcinogenicity and
3
reproductive toxicityof lead, as Plaintiffsshallspecify in further application to the Court;
4
5
That the Court grant plaintiffits reasonable attorneys'fees and costs of
3.
That the Court grant such other and further relief as may be just and
suit; and
6
7
2.
proper.
8
Pursuant to the Second Cause of Action, plaintiffprays:
9
1.
That the Court, pursuant to Health & Safety Code w
assess civil
10
penalties against each of the Defendants in the amount of $2,500 per day for each violation of
I1
Proposition 65 alleged herein;
12
13
That the Court grant plaintiff its reasonable attorneys' fees and costs of
3.
suit; and
14
15
2.
proper.
16
Pursuant to the Third Cause of Action, plaintiff prays:
17
1.
That the Court, pursuant to Business & Professions Code w17203,
18
preliminarily and permanently enjoin Defendants from offering the Products for sale in
19
California without providing clear and reasonable warnings regarding the carcinogenicity and
20
reproductive toxicity of lead, as Plaintiffs shaH specify in further application to the Court;
21
22
3.
suit; and
23
24
2.
proper.
25
Pursuant to the Fourth Cause of Action, plaintiff prays :
26
1.
That the Court order each Defendant to notify each and every customer of
27
such Defendant who purchased the Products since October 17, 1996, in order to give such
28
customers an opportunity to obtain restitution from such Defendant; and that the Court order the
Comot~
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1
Defendants to pay restitution, disgorgement and be subject to such other relief as may be
2
necessary to restore to any person in interest any money or property, real or personal, which may
3
have been acquired by means of the acts alleged herein that occurred after October 17, 1996;
4
5
3.
suit; and
6
7
2.
proper.
8
Pursuant to the Fiith Cause of Action, plaintiff prays:
9
1.
10
preliminarily and permanently enjoin Defendants from offering the Products for sale without
11
disclosing the presence of lead in such Products.
12
13
3.
suit, and
14
15
2.
proper.
16
Pursuant to the Sixth Cause of Action, plaintiffprays:
17
1.
18
19
customers an opportunity to obtain restitution from such Defendant, and that the Court order the
20
21
22
have been acquired by means of the acts alleged herein that occurred after October 17, 1996,
23
24
3.
suit, and
25
26
2.
proper.
27
Pursuant to the Seventh Cause of Action, plaintiffprays:
28
1.
Complaint
- 15 -
PROP65
News-33369
preliminarily and permanently enjoin Defendants from offering the Products for sale without
disclosing the presence of lead in such Products;
3
4
3.
suit; and
5
6
2.
proper.
7
Pursuant to the Eighth Cause of Action, plaintiffprays:
8
1. ;
9
10
customers an opportunity to obtain restitution from such Defendant; and that the Court order the
11
12
13
have been acquired by means of the acts alleged herein that occurred aiter October 17, 1996;
14
15
3.
suit; and
16
17
2.
proper.
18
19
Dated: October 16, 2000
Respectfully submitted,
20
21
LEXINGTON LAW GROUP
22
23
24
Edc~S. Somers, Esq,.
Attorneys for Plaintiff
CENTEK FOR ENVIRONMENTAL
HEALTH
25
26
27
28
Compllfiat
- 16-
PROP65
ATTORNEYORP.N~YWrTHC~rTA1"rORNEY(Namea , ' ~
TELEPHONENO.:
ERIC S. SO~[F__.RS
(Bar# 13905b,
- LEXINGTON LAW GROUP
151 Vermont Street, Suite I IA
San Francisco, California 94103
FORC ~ ' T USEGt4.y
(415) 554-3520
ENDORSED
FILED
San Francisco County Superior Cou~t
Arro~'Y~oR~Vam,~:Center for Environmental Health, Plaintiff ;
Inae~ name of r
and name of )uoic=at ~smcl and ~
NOV1 5
court. ~ ~n~.
SAN FRANCISCO COUNTY SUPERIOR COURT
GORDON
BY:
SNORT TITLE OF CASE:
OATE.
DEPT./ON.:
ZOO0
P A R K - L I , Clerk
LINDA ALLSTON
Deputy Clerk
CEH v. SAFETY 1ST, INC.
PROOF OF SERVICE
(Summons)
News-33370
CASE NUMBER:
315901
1. At the time of service I was at least 18 years of age and not a party to this action, and I served copies of the (~ec/fy documents):
Summons; Complaint; Notice to Plaintiff re Status & Setting Con.t'ercnce; Blank: Status and Setting Confei-e~ce Statement;
Alternative Dispute Resolution Guide
2. a. Party served (specify name of party as shown on the documents served):
Safety 1st, Inc.
b. Person served: [ - - ' 7 party in item 2a
~
other (specify name and title or relationship to the party named in item 2a):
Michael Lcmcr, CFO
c. Address: 45 Dan Rd.
CAnton, ~
0202]
3. I served the path/named in item 2
a. i"-'-7 by personally delivering the copies
(1) on (date):
(2) at (time):
b. ~
by leaving the copies with or in the presence of (name and tit/e or re/ationship to person indicated in item 2b):
(1)
(business) a person at least 18 years of age apparently in charge at the officer usual place of business of the person
served. I informed him or her of the general nature of the papers,
(2)
c.~'-]
(home) a competent member of the household (at least 18 years of age) at the dwelling house or usual place of
abode of the person served. I informed him or her of the general nature of the papers.
(3) on (date):
(4) at (time): ,
(5) ~ - ~ A declaration of diligence is attached. (Substituted service on natural person, minor, conservatee, or candidate.)
by mailing the copies to the person served, addressed as shown in item 2c, by first-~dass mail, postage prepaid,
(1) on (date): October 13, 2000
(2) from (city): San Francisco
with two copies of the Notice and Acknowledgment of Receipt and a postage-paid return envelope addressed to me,
(4) V - ~ to an address outside California with return receipt requested.
(Attach completed form.)
d. [ ~
by causing copies to be mailed. A declaration of mailing is attached.
e. ['--"1 other (sl~ecify other manner of service and authorizing code section):
4. The "Notice to the Person Served" (on the summons) was completed as follows:
a. [---7 as an individual defendanL
b. [ ' - " 7 as the person sued under the fictitious name of (specify):
c. I ' ~
on behalf of (specify): SafeWI~ Inc.
under: ~
CCP 416.10 (corporation)
CCP 416.60 (minor)
F'--] other:
[~
CCP 416,20 (defunct corporation)
CCP 416.70 (conservatee)
CCP 416.40 (assoc~tton or partnership)
CCP 416.90 (individual)
5. Person serving (name, address, and telephone No.):
a. Fee for service: $
(3)
Aaron Daley
151 Vermont Street, Suite 1 IA
San Francisco, CA 94103
b. _ ~
Not a registered California process server.
c, ~
Exempt from n ~
undwBS~a w
d. [ ' - - 7 RegiaterN ~
pmcel= mf~er,
(1) r - I
~=.~==~rsc~.
(2) RagCeln~ No.:
(3)
co..~.
6. I ~ J I declare under penalty of perjury under the laws ofthe State of CaOfomla that the ~ : ~ g
7. [----1 I am 9 California sheriff, marshal, o r c o r . d a b i e and I certlfy
. ,-:'v ~
Date: Octolx~-27, 2000
F = m / ~ m d W ~umN2
Judlml C=un=ld C a ~ r ~
From=fir Re~=cs TM
.
-
':
is blJe ~
~
PROP65
News-33371
l
~lt~ of
9 Complete items 1, 2, and 3. Also complete
i~em 4 if Restricted Delivery is desired.
9 Print your name ancl aclc~ress on the reverse
so that we can return the card to you.
9 Attach this carol to the back of the mailpiece,
or on the front if space permits.
1. Article Ac~resaer to:
Tf YES. enter ~elivery aclcfmss be(ow:.i
O~ent
D ~
I"l Yes
E3No
3, Service Type
C] RegisteR=el
Q Insur~ Ma~l
4. ResvCt~ 0 e ~
2. A,.,~le NUII'~U' (Uc~y f~m ,~m~ce ~
eS R:wn 3 8 1 1 , Jury 1 ~
<
,
9. . . .
.
.*
.4
.~:.
~
.-
- ~
~-~.~M~
t)om=== R~Jrn R~mot
[ ] Return Rec~m for Merc~arK
[ ] C.O,D.
(E=='aF~)
D Yes
PROP65
News-33372
PROP65
M o r s e Mehrban, Esq. (SBN
P.O. Box 2 5 1 7 2 2
Los A n g e l e s CA 90025
310-471-2033
Attorney
Consumer
News-33373
ORIGINALFILED
169082
OCT 1 7 2O0O
LOS ANGELES
For Plaintiff,
Cause, Inc.
SUPERIORCOURT
SUPERIOR
COURT
COUNTY
OF LOS
OF THE
STATE
ANGELES,
OF C A L I F O R N I A
CENTRAL
DISTRICT
I0
CONSUMER
CAUSE,
Case
INC.,
No.
II
I~ C 2 3 8 6 1 3
z
'g
gc
m
tf3
x~o
0
13
V.
DRUGSTORE.COM,
~1
~
o
x
c~
C O M P L A I N T FOR PENALTY,
INJUNCTION & RESTITUTION
Plaintiff,
t2
INC.,
9 ,-4
mr-~
m r163 '-;
u~
,qr
15
Defendant.
I
O
uO~'~
n , < m
16
0
17
u,
m
e
,...?
.
Plaintiff
the
is a p e r s o n
general
public
who
brings
pursuant
this
action
to B u s i n e s s
on b e h a l f
& Professions
of
Code
19
section
17204.
Plaintiff
is a p e r s o n
who
brings
this
20
21
action
22
Code
23
.
At
in the
section
all
times
public
interest
pursuant
to H e a l t h
& Safety
25249.7(d).
mentioned
herein,
defendant
was
a person
24
within
the m e a n i n g
of B u s i n e s s
& Professions
Code
section
25
17201
and
Health
times
mentioned
& Safety
Code
section
25249.11(a).
26
27
herein,
defendant
has
had
I0 or m o r e
28
Complaint
for Penalty,
Injunction
& Restitution
At
all
PROP65
News-33374
.
I
employees.
2
Defendant has its principal place of business
in Washington.
3
FIRST
CAUSE
OF
ACTION
FOR
VIOLATION
OF
HEALTH
AND
SAFETY
CODE
4
SECTION
25249.6
5
Cate~o~
6
7
3.
1:
Testosterone
While in the course of doing business,
8
through this date,
from May 15,
1999
and continuing each and every day
9
thereafter,
defendant
has been and is knowingly and
I0
intentionally exposing California
II
each county and city thereof,
:r
residents,
located in
including but not limited to
r
~
c~o
13
~1 ('N
r
~
O ~
m~l
the city and county of Los Angeles,
to a chemical
known to
m
the state to cause cancer,
9 ,.~
~
~ r -, ~
"1 I
UJ O
15
California Code of Regulations,
~o~
16
o
I?
~
as set forth in Title 22,
California
storage,
20
12000.
residents have been and are being exposed to
this chemical
19
section
as a result of their acquisition,
consumption,
or other reasonably
of consumer products manufactured,
purchase,
foreseeable use
distributed
and sold by
21
defendant.
2;'
5.
These consumer products
23
24
are:
9 TABLETS~!~PILLS,<I'!i~I:<CAPSULES,~
~
CAPLETS,
25
POWDERS A N D LIQUIDS
CONTAINING DHEA;
26
9
TABLETS, !<RILLS,.~APSULES,
CAPLETS, P O W D E R S A N D LIQUIDS
2"/
28
CONTAINING
DEHYDROEPIANDROSTERONE;
Complaint
for Penalty,
Injunction
& Restitution
PROP65
9
TABLETS,
PILLS,
CONTAINING
9
CAPLETS,
POWDERS
AND
LIQUIDS
POWDERS
AND
LIQUIDS
ANDROSTENEDIONES;
PILLS,
CONTAINING
5
6
TABLETS,
CAPSULES,
CAPSULES,
CAPLETS,
ANDROSTENEDIOLS;
9
WEIDER
DHEA
TABLETS,
CAPSULES,
PILLS
9
WEIDER
ANABOLIC;
9
WEIDER
MEGABOLIC;
9
WEIDER
ANDROSTENEDIOL
9
WEIDER
ANDROSTENEDIONE
9
TWINLAB
TESTOSTERONE
9
TWINLAB
GROWTH
9
TWINLAB
IGF
9
TWINLAB
TRIBULUS
FUEL;
9
TWINLAB
TRIBULUS
FUEL
STACK;
9
TWINLAB
MAXILIFE
MEGA
DHEA;
9
TWINLAB
MAXILIFE
DHEA ANTIOXIDANT
9
TWINLAB
MAXILIFE
DHEA;
9
TWINLAB
MAXILIFE
WOMEN'S
9
TWINLAB
MAXILIFE
DHEA WOMEN'S
9
TWINLAB
DHEA
27
9
TWINLAB
FEMALE
28
9
TWINLAB
MALE
AND
PACKS;
7
8
9
I0
II
m
~o
0
~r"
15
z~
16
o
~
17
~
,<
,..3
,n
hl
0
en
uO
h3 ~ "
"2 I
~d
0
u.
u~
4
CAPSULES
TABLETS,
AND
CAPSULES
PACKS;
AND
PACKS;
FUEL
BOOSTER;
13
V, p-
o x
TABLETS,
12
UD
r
=:
18
19
FUEL;
FUEL;
20
FORMULA;
21
22
23
24
News-33375
PHYTOESTROGEN
PROTECTOR;
FORMULA;
25
FUEL;
26
FUEL;
FUEL
PLUS;
3
compi'aint for Penalty, Injunction
& Restitution
PROP65 News-33376
I
9
TWINLAB
RIPPED
FUEL
(THERMOGENIC
9
TWINLAB
RIPPED
FUEL
9
BRONSON
ANDRO
9
BRONSON
DHEA;
9
BASIC
9
GNC
9
NATROL
9
PHARMASSURE
9
MUSCLETECH
NORTESTEN;
13
9
MUSCLETECH
ANOTESTEN;
14
9
MUSCLETECH
ACETABOLAN-II;
9
PINNACLE
ANDROSTAT
I00;
9
PINNACLE
ANDROSTAT
150
CYCLO
9
PINNACLE
ANDROSTAT
i00
POPPERS;
9
PINNACLE
ANDROSTAT
PRO
SIX;
9
PINNACLE
ANDROSTAT
POPPERS;
22
9
PINNACLE
ANDROSTAT
6 POPPERS;
23
9
PINNACLE
TRIBESTROL;
9
PINNACLE
ANDRO
POPPERS;
9
SEXRX;
9
PINNACLE
ANDRO
CYCLO
9
PINNACLE
ANDRO-FLAV
MALE
FORMULA);
2
TESTOSTERONE
BOOSTER;
3
4
5
FORMULA;
6
NUTRITION
DHEA;
7
DHEA
TABLETS,
CAPSULES,
AND
VITA
PAKS;
8
9
I0
DHEA
TABLETS
DHEA
AND
CAPSULES;
TABLETS
AND
CAPSULES;
12
(D
:=
U]
O
~c~o
U2 C.4 ~
~n t-
~
O
~-<o7
r
15
0
turn
.a
~
~.1
W O
16
t~
o
~
17
POPPERS;
<
,..1
18
19
20
2~
24
25
26
27
POPPERS;
28
STACK;
4
Complaint
for Penalty,
Injunction
& Restitution
PROP65
c
I
News-33377
C
9
REVITALIFE
MEN'S
PACK;
9
REVITALIFE
WOMEN'S
9
ANDROPLEX
9
DHEA;
2
PACK;
3
4
5
6
SIX;
WEIDER
DHEA TABLETS,
CAPSULES,
WEIDER
ANABOLIC;
9
WEIDER
MEGABOLIC;
I0
WEIDER
ANDROSTENEDIOL
WEIDER
ANDROSTENEDIONE
PILLS A N D
PACKS;
7
8
TABLETS,
CAPSULES
AND
PACKS;
and
II
LZ
:x:
m
X~o
u'b
r
,0
U~ t . 4 0 ~
.
consumers'
acquisition,
or o t h e r
14
~<
reasonably
,.-q
AND
PACKS.
storage,
to cause
use of these
.........
!:a c h e m i c a l
.....
t h e m to<~0~i*s[s
California
~
purchase,
foreseeable
~,~:.,~:~
exposes
0 ~ u3,~
,m n.~ ,-.1 i
u~ 0
o
CAPSULES
consumption,
13
rt"9
(D
V) r "
The
TABLETS,
cancer.
(Title
22,
products
known
Cal.
to
Code
Regs.,
w
17
<
|9
12000(b)
The
ingestion.
The a b o v e - l i s t e d
20
to be and are
21
the
22
levels
ingestion,
route
of e x p o s u r e
ingested
to the c h e m i c a l
consumer
by c o n s u m e r s
of t e s t o s t e r o n e
in their
the t e s t o s t e r o n e
products
is
are d e s i g n e d
in order
to i n c r e a s e
bodies.
Following
in the c o n s u m e r ' s
body
is
what
is
23
increased
to a level
that
is above
and b e y o n d
24
normal,
25
26
27
28
.
As
safe
stated
25249.6
and healthy.
in C a l i f o r n i a
Health
and 2 5 2 4 9 . 1 1 ( b ) ,
employees
shall
knowingly
& Safety
no e n t i t y
and
with
Code
sections
ten or m o r e
intentionally
expose
5
Complaint for Penalty, In3unction & RestitUtion
any
PROP65
News-33378
F
1
individual
2
to cause
to a chemical
cancer without
known to the state of California
first giving
clear
and reasonable
3
warning
to such
individual.
refused
and fails
Defendant
has
failed and
4
and refuses
to give the warning
required
5
6
by California
7
individuals
8
their
Health
& Safety Code section
who use the above-listed
foreseeable
25249.6
consumer
to those
products
in
and intended manner.
9
.
On May 15,
2000,
plaintiff
served a statutory
60-day
notice
I0
for defendant's
violation
of Health
and Safety
Code
Section
11
~:
12
25249.6
13
the District
o=~u ~
14
ox
~r'"
15
~r
~
i
l.o 0
~db
I
~ o ~,-~
c
~'
Attorney
the City A t t o r n e y
Attorney
General,
for each county
for each California
population
exceeding
750,000.
provisions
of 22 C a l i f o r n i a
in California,
city having
The notice
and
a
complied
with
16
Code of .Regulations
section
17
<
9~
the California
0,1
IC~o
0
upon defendant,
12903.
18
19
.
20
None of the public
currently
prosecutors
prosecuting
identified
any action
against
above
is
any defendant
21
herein
for the violations
set forth above.
22
Categor~
2:
Progesterone
23
24
25
26
I0.
While
in the course
through
this date,
thereafter,
of doing business,
and continuing
defendant
from June
23,
each and every
day
has been and is knowingly
1996
and
27
intentionally
exposing
California
residents,
located
in
28
each county
and city thereof,
including
but not
6
Complaint for Penalty, Injunction & Restitution
limited
to
PROP65
News-33379
{"
I
the city and county of Los Angeles,
2
the state to cause cancer,
as set
to a chemical
known to
forth in Title 22,
3
California
Code of Regulations,
California
residents
section
12000.
4
ii.
have been and are being exposed
to
5
6
this
7
storage,
8
chemical
as a result of their acquisition,
consumption,
of consumer
or other
reasonably
products manufactured,
purchase,
foreseeable
distributed
use
and sold by
9
defendant.
I0
12.
II
=
O,J
,.,a
0
Z~o
0
ca ~
These
consumer products
12
Maximum
13
and
Living's
are:
P R O G E S T I M A X Natural
Progesterone
Cr@me;
cq
~
I
13.
Dixie Health's
PROGESTONE
The consumers'
acquisition,
uO ~
16
o
l?
or other
18
exposes
~
19
reasonably
900 Cr@me gel.
purchase,
foreseeable
them to progesterone,
California
to cause cancer.
storage,
consumption,
use of these products
a chemical
(Title 22,
known to
Cal.
Code Regs.,
2O
12000(b)).
The route of exposure
to the chemical
is dermal
2i
contact.
22
The defendant
23
apply
the products
24
contain progesterone.
instructs
to the skin.
Following
product
purchasers
The products
themselves
application,
the
25
progesterone
is absorbed
into the skin and enters
the
26
user's body.
27
4.
28
As stated
25249.6
in C a l i f o r n i a
and 25249.11(b),
Health
to
& Safety Code
sections
no entity with ten or more
7
Comp~int for Penalty, Injunction & Restitution
PROP65
News-33380
..
!
employees shall knowingly and intentionally expose any
2
individual to a chemical known to the state of California
3
to cause cancer without first giving clear and reasonable
4
warning to such individual.
Defendant has failed and
5
refused and fails and refuses to give the warning required
6
by California Health & Safety Code section 25249.6 to those
7
8
individuals who use the above-listed consumer products in
9
their foreseeable and intended manner.
I0
II
,=
u'3
ta
0
Xc~m
,,1 r
15.
On June 23, 2000, plaintiff served a statutory 60-day
12
notice for defendant's violation of Health and Safety Code
13
Section 25249.6 upon defendant,
~
General,
t
the District Attorney for each county in
California,
oz~
t, ~ , <
o
the California Attorney
o3
c'3
g
and the City Attorney for each California city
16
having a population exceeding 750,000.
17
<
The notice complied
with provisions of 22 California Code of Regulations
19
20
section 12903.
16.
None of the public prosecutors identified above is
2l
currently prosecuting any action against any defendant
22
herein for the violations set forth above.
23
24
SECOND
25
26
CAUSE
OF ACTION
FOR VIOLATION
CODE
17.
SECTION
OF BUSINESS
AND
PROFESSIONS
17200
Plaintiff incorporates herein by reference all foregoing
27
paragraphs of this complaint as if set forth fully herein.
28
Complaint for Penalty, Injunction & Restitution
PROP65
News-33381
C
1
18.
2
The acts and practices,
Business
& Professions
as described
Code
section
above,
17200
violate
in that
3
defendant's
acts and practices
violate
Health
& Safety
constitute
unlawful
Code
4
section
5
25249.6
6
business
7
Professions
and,
consequently,
acts or practices
Code
section
8
within
the meaning
of Business
17200.
PRAYER
9
WHEREFORE,
plaintiff
requests
against
defendant:
I0
II
:~
A.
A permanent
12
Code
t3
25249.7(a);
injunction
section
pursuant
17203 and Health
to Business
& Safety
& Professions
Code
section
& Safety Code
section
r
gO ('-d O~ 0.3
14
X m
t'N
~-I
B.
Penalties,
pursuant
to Health
25249.7(b)
in the amount
15
uO
z~
16
m
17
i.u
u.
0
,.-1
o
C.
18
19
20
of $2,500 per day per violation;
An order
to pay restitution,
Business
& Professions
D~
Costs
E.
Reasonable
F.
Any
Code
pursuant
section
to California
17203;
of suit;
attorney
fees and costs;
and
21
further
relief
that
the Court deems
just and equitable.
22
Da t ed:
23
LAW OFFICES
OF MORSE MEHRBAN
24
25
26
27
9
se Mehrban,.
Esq.
Attorney
for
Plaintiff,
Consumer
Cause,
Inc.
28
Complaint for Penalty,
Injunction & Restitution
&
PROP65
PROOF OF SERVICE BY MAIL
I am over the age of 18 and not a party to this case.
I am a resident of or employed in the county where the
mailing occurred.
My business address is P.O. Box
251722, Los Angeles, CA 90025, and my phone number is
213-382-3821.
On this date, I served the C O M ~ L A I N T FOR
PENALTY, INJUNCTION
& RESTITUTION
by enclosing a true
copy in a sealed envelope addressed to each person
whose name and address is shown below and d e p o s i t i n g
the envelope in the United States mail with first class
postage fully prepaid.
Place of mailing:
Los Angeles, CA
Name and address of each person to whom document
was m a i l e d :
Office of C a l i f o r n i a A t t o r n e y General
Attn:
Deputy A t t o r n e y General Edward G. Weil
1515 Clay St., 2 0 th Floor
Oakland, CA 94612
I declare under p e n a l t y of perjury under the laws
of the State of C a l i f o r n i a that the foregoing is true
and correct.
Dated:
November
29,
2000
~'~'Z ~
xx. .
Morse Mehrban
Proof
of
Service
/
News-33382

Center For Safety I st, Incorporated

Transcription

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