In a recent trial in Los Angeles Superior Court in the matter AFS Enterprises, LLC, v. Reckitt Benckiser, PLC, Los Angeles Superior Court Case No. BC539678, the plaintiff brought a single claim under Proposition 65 (Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code sections 25249.1 et seq.) against the makers of Brasso, a brass polish, arguing that the manufacturer was obligated to provide a Proposition 65 warning for the product.  Proposition 65 requires manufacturers and retailers to provide warnings for products sold to California consumers if the products expose consumers to certain chemicals including lead.  Here, the plaintiff’s argument was unique.  Although Brasso itself does not contain lead, the plaintiff argued that a warning was nevertheless required because the polish, when used on certain brass surfaces, releases lead. The manufacturer argued that it should be exempt from the warning requirement because the amount of lead customers are exposed to when using the polish does not exceed the “Maximum Allowable Dose Level.”  The court, after weighing testimony of the various experts at trial, issued a Statement of Decision on May 12, 2016 wherein the court ultimately agreed that the manufacturer is not required to provide a Proposition 65 warning.

The obligation to provide a Proposition 65 warning occurs when a product exposes consumers to a listed carcinogen in excess of the “No Significant Risk Level” (“NSRL”), or to a listed reproductive toxin that exceeds the “Maximum Allowable Dose Level” (“MADL”).  Cal. Health & Safety Code § 25249.10.  The NSRL for lead is 15 micrograms per day while the MADL for lead is 0.5 micrograms per day.  Because lead is both a listed carcinogen and a reproductive toxin, the defendant here was required to show that lead exposure resulting from the use of Brasso falls under the lower of these two thresholds, the MADL.

To determine the amount of lead exposure from Brasso, the trial court first considered the ways in which consumers could be exposed to lead.  The plaintiff alleged that lead exposure could occur through (1) “contact between the byproduct on the brass items and the skin, (2) transfer of lead from the skin to the mouth . . . and (3) through absorption of lead through the skin.”  AFS Enterprises, Statement of Decision, p. 1.  The plaintiff’s and the defendant’s experts agreed, however, that lead is not easily absorbed dermally, and so “any potential route of exposure would have to be through significant hand-to-mouth contact.”  Id., p. 7.

The court next considered expert testimony assessing the amount of lead exposure resulting from the use of Brasso through hand-to-mouth transfer.  First, the court considered an experiment by Dr. Brian Lee, in which Dr. Lee used Brasso with white nylon gloves and attempted to measure the amount of lead that would stick to the skin.  The court determined that this method was not generally accepted in the scientific community.  The court also found that Dr. Lee’s methodology overestimated lead content because absorbent nylon gloves pick up more lead than skin would.  The court instead accepted the experiment performed by the defendant’s expert showing that an average consumer would encounter no more than 0.05 micrograms of lead per fingertip after hand washing.  Finally, the court considered testimony from various experts regarding the likelihood of consumers engaging in hand-to-mouth behavior when using Brasso.  The court ultimately found that it is highly unlikely that consumers would engage in any such conduct when using Brasso because the product is extremely malodorous. Thus, the court found that the likelihood of consumers being exposed to any lead was very low.

The plaintiff’s argument in this case was a creative one.  Brasso itself is lead free, so the plaintiff instead showed that Brasso produced lead when used on certain surfaces.  In other words, the byproduct, not the product itself, contained lead.  However, even with the plaintiff having shown this, the court found that the lead was extremely unlikely to be transferred to the consumer.  Thus, the court was unwilling to extend the Proposition 65 warning requirement to the defendant.

*Cody Sargeant is a law clerk in Sheppard Mullin’s Los Angeles office.