California Proposition 65 warning is not required for water pipes when the exposure to marijuana smoke is only an indirect consequence depending on how a consumer chooses to use the product.
Proposition 65 was enacted as an initiative measure in 1986 and added sections 25249.6 through 25249.13 to the California Health and Safety Code. Section 25249.6 provides: “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. . . .”
But what does “expose” mean under Proposition 65? The California Court of Appeal recently addressed this surprisingly difficult question in Environmental Health Advocates, Inc., v. Sream, Inc. (Case No. A163346; Sep. 26, 2022). Environmental Health Advocates (“EHA”) filed an enforcement action against Sream for alleged violation of Proposition 65 for failing to provide an appropriate warning that its water pipe products may expose consumers to marijuana smoke. Sream filed a motion for judgment on the pleadings, arguing that its products were not subject to Proposition 65, and the case should be dismissed with prejudice.
Sream is based in California and manufactures water pipes, which typically consist of a chamber for water, along with a mounted bowl. A user typically adds a substance, chosen by the user, to the mounted bowl. The user burns the substance and creates suction to draw smoke through the water. The smoke is cooled before it is ultimately inhaled.
EHA alleged that Sream’s products, if used with marijuana, produce marijuana smoke, which is a carcinogen regulated by Proposition 65. Sream argued that EHA did not allege that the water pipe products can be used only with marijuana, or that their use with other substances emanates any carcinogen or other chemical subject to Proposition 65.
The trial court granted the motion and dismissed the case, explaining that “Plaintiff cites no case holding that a product that does not contain any chemical causing cancer or reproductive toxicity is subject to Proposition 65 merely because it could potentially be used with a substance that can be carcinogenic.” EHA appealed.
After reviewing the legislative history of Proposition 65 in depth, the Court of Appeal found that the term “expose” was meant to include all anticipated means of bringing individuals into contact with chemicals. But the appellate court drew a line in holding that Proposition 65 is meant to prohibit any act that brings consumers directly into contact with a listed chemical without providing a clear and reasonable warning. “Directly” is the key word.
The Court of Appeal’s reasoning included the following:
Requiring a warning for possible indirect contact, depending on how a consumer chooses to use the product, would introduce confusion into that decision-making process. Consumers could, for example, interpret such a label on a water pipe to warn of direct exposure caused by the material the pipe is made of, or to warn of the effect of burning any substance on the pipe. Such confusion does not advance the purpose of Proposition 65.
In sum, although exposure to marijuana smoke may be an indirect consequence of purchasing one of Sream’s water pipes, such exposure is not a direct consequence that brings the product within Proposition 65’s already very broad reach.
For further questions or comments on the content of this post, please email John Fowler at [email protected] or Sara Borjigin at [email protected].
