In Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America, et al., 129 Cal. App. 4th 540 (2005), the California Court of Appeal (2nd District) reviewed and rejected as invalid certain notices served by plaintiff Consumer Advocacy Group (CAG) on numerous hotels and retail establishments under Proposition 65. The court accordingly upheld the trial court’s dismissal of CAG’s claims against those defendants upon whom CAG served invalid notices.
Prop 65 was passed by voter initiative in 1986 and mandates the issuance of warnings to the public of harmful or potentially harmful exposure to chemicals known to the State of California to cause cancer or reproductive toxicity. Codified at Health and Safety Code section 25249.6 et seq., Prop 65 includes a mechanism for citizen enforcement by any person acting in the public interest, enabling a person or citizen’s group to bring an action no sooner than 60 days after giving notice of a Prop 65 violation to the Attorney General and to the alleged violator if the AG or any district or city attorney does not itself commence an action against the alleged violator.
In the notices at issue in this case, CAG alleged that hundreds of hotels and retailers had violated Prop 65 by exposing individuals to secondhand smoke, tobacco and tobacco products without providing reasonable warnings as required by the statute. Defendants argued that the notices were overbroad and thus invalid, and the trial court agreed. On appeal, the 2nd District Court of Appeal upheld the trial court’s decision on many, but not all, of the notices in question. The notices which the appellate court agreed were deficient were those that failed to describe environmental, occupational, and consumer product exposures with sufficient specificity to enable the alleged violator to discern what it had done wrong.
In terms of environmental and occupation exposure, the court found that several of CAG’s notices simply stated that “[t]he route of exposure for Occupational Exposures and Environmental Exposures to the chemicals listed below has been inhalation, ingestion, and dermal contact.” The court considered this overbroad because the notice language essentially repeated the phrasing of the statute without site-specific and defendant-specific details. With regard to consumer product exposure, the court invalidated notices which referred to “smokeless tobacco” and “tobacco products” as providing insufficient information to identify a particular product or violation.
A number of refinements of the notice provisions of Prop 65 have been developed legislatively and judicially since the statute’s passage in 1986. As the court noted in this case, “[n]otice, the key to due process and the crux of the present appeal, is required before property interests may be disturbed or penalties assessed.” 129 Cal. App. 4th at 551. As the penalties assessed against violators of Prop 65 can be severe, clear descriptions of suspected violations are crucial to businesses faced with Prop 65 notices and to the State in evaluating alleged warning infractions.
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