Chronicling the high cost of our legal system
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Bruce Nye (Cal Biz Lit) and Michael Pappas (at Law.com Corporate Counsel) count the ways: “Why do I have to tell everyone that my grilled chicken, which is made the same way as my grandmother used to make it, may cause cancer?” (The answer being California-specific Proposition 65.)
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Bruce Nye has a photo of a pointless new warning McDonald’s has posted in California stores to avoid litigation. The warning seems to have a side safety benefit: by the time you finish reading it, your coffee won’t be hot any more.
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In legal settlements, that is, thanks to California’s Prop 65 [Cal Biz Lit] We’ve met the Center for Environmental Health before here and here.
P.S.: Bounty-hunting for lead residues has “sort of become big business in California” [Jennifer Taggart, quoted in the Washington Post]
Bruce Nye at Cal Biz Lit has the latest from the California Prop 65 front.
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Rick Woldenberg talks back to the California attorney general, and also raises some questions about Proposition 65 and the finances of the freelance enforcers in the case, the Center for Environmental Health (CEH). Two years ago we covered CEH’s crusade against the iPhone. More: Darleen Click/Protein Wisdom and a followup from Woldenberg.
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“Joints and baggies sold at California’s medical marijuana dispensaries will soon carry a new warning label” now that a state panel has added reefers to the long list of officially recognized carcinogens that must be warned about under Prop 65. [San Jose Mercury News via CalBizLit]
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Everyone else is getting publicity by filing suits over the iPhone, so they may as well too: “Environmentalists have threatened to sue Apple if it does not make its iPhone a “greener” product or tell consumers of the toxins allegedly used in the device’s manufacture. The Center for Environmental Health (CEH), a campaign group based in Oakland, California, said that it would launch legal action in 60 days unless Apple took action.” (Rhys Blakely, Apple faces legal threat over ‘toxic’ iPhone”, Times Online (U.K.), Oct. 17; InfoWorld; ArsTechnica). The CEH is invoking California’s ultra-liberal Prop 65 toxics-warning law, on which see posts here, here, here, etc.
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Hoover Institution’s Henry I. Miller:
Moreover, because Prop 65 is enforced entirely through litigation, it has created a system of legalized extortion. To initiate a lawsuit, a plaintiff need only show that a listed chemical is present in a consumer product and that the defendant business “knowingly” exposes Californians to that product without posting the warnings. Prior to filing the suit, the plaintiff must send the defendant a notice describing the exposure; 60 days thereafter, the plaintiff may sue. That notice may be the first inkling a retailer has that his products are exposing consumers to listed chemicals.The latest chemical to run afoul of Prop 65 is di-isodecyl phthalate, or DIDP, an important and extremely useful additive used to soften hard vinyl plastic and found in dozens of common items, including shower curtains. It is also used to insulate the wires in the walls of homes across America. Safely used for more than 50 years, it is one of the most thoroughly tested products in the world and has been closely examined by numerous regulatory agencies throughout the United States and Europe. Through all that evaluation, no credible scientific review has found DIDP to be dangerous in normal use.
However, those favorable conclusions didn’t faze regulators at California’s Office of Environmental Health Hazard Assessment (OEHHA), who recently decided that DIDP may pose a risk of developmental harm in humans and, therefore, should be listed under Prop 65.
But the mere presence of something does not imply that it’s dangerous; one needs to know the dose, length of exposure, how the body disposes of it, and so forth. Prop 65 standards only look at the potential for risk as criteria for listing. Using that logic, since people regularly suffocate from a chunk of meat blocking their windpipe, maybe steaks should be listed too. (One hates to give the regulators ideas, however.)
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At the “Life and Times” department of the Southern California public broadcasting station, reporter Val Zavala examines a problem often discussed in this space (May 26,, Apr. 5, Apr. 29, and Dec. 26, 2006, among many others):
This story is about a long-standing soda-pop store in Highland Park, Calif., that was hit with a legal notice telling them that they are selling hazardous products. The owner says that they don’t make the product, but that they have informed the public according to the Proposition 65 law. But the law allows them to be sued anyway. Their only choice? Settle or go to court. As Val Zavala reports, some attorneys are making millions abusing Proposition 65.
The ten-minute video has expired, but the station’s blog entry about the show has links and discussion (Feb. 28).
Many of you may be aware of California’s “Proposition 65,” passed in 1986 and intended to help consumers by requiring warnings of any known exposure to a variety of chemicals, many of them carcinogens, that the state identifies on its Prop 65 list. In practice, many would argue, the law has done more to help plaintiffs’ attorneys than consumers, by creating an enormous list of allegedly dangerous substances and permitting a lawsuit whenever warnings of those substances are not posted — whether or not there is any realistic risk of harm under the particular circumstances.
Here’s a good example. Those listed chemicals include “heterocyclic amines” (HCAs) which are formed by cooking meat, the highest concentration occurring in cooked chicken. And so a group called the Physicians’ Committee for Responsible Medicine recently sued several restaurant chains, including McDonald’s, Burger King, and Outback Steakhouse, charging them with failure to warn customers that they cook meat. That is, failure to warn customers about the activity that is the precise reason that those customers are going there in the first place.
According to the National Cancer Institute, while HCAs may have some association with increased risks of cancer, there is currently “no good measure of how much HCAs would have to be eaten to increase cancer risk” — more research is needed. In fact, the NCI cited to one study that specifically covered fast-food restaurants and concluded that those companies’ products had low levels of HCAs. According to that study, home cooking was a greater danger. But that’s the beauty of laws like Prop 65 — evidence tends to be optional.
American Council on Science and Health
Prop 65 News Online
Previous coverage of the animal-rights group “Physicians’ Committee for Responsible Medicine” on Overlawyered: Sep. 6 and links therein.
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Guestblogger Peter Morin earlier this month took note of a bracing decision by Judge David Sills, presiding justice for a California court of appeal, overturning a $540,000 settlement in a Proposition 65 toxic-warning case filed by what he called “bounty hunters”. The National Law Journal has followed on with more details of the case, Consumer Defense Group v. Rental Housing Industry Members, in which a law firm, acting on behalf of a supposed consumer group and complainant, “sued 170 apartment building owners around California and the Rental Housing Industry trade association for failure to warn of the danger of cigarette smoking by tenants anywhere in the building and parking lots where auto exhaust might expose tenants to carcinogens. … the ultimate global settlement included a promise to post a generic warning on buildings and a laundry list of potential sources of cancer provided on a Web site, including furniture, paint, construction materials, cleaning supplies, swimming pool chemicals, pest control and landscaping.” It gets better:
“Trade group wanted to buy its peace and was willing to pay off the law firm to obtain it, in return for which the owners would also get a favorable deal with regard to any future litigation concerning Proposition 65 violations,” Sills wrote. But he saved his wrath for Graham & Martin. “Consumer Defense Group and McKenzie are simply straw plaintiffs set up to enable the law firm of Graham & Martin to obtain legal fees in Proposition 65 litigation. We will therefore refer to the ‘plaintiffs’ by the title most substantively accurate: Graham & Martin,” said Sills.
For our earlier coverage of Prop 65 bounty-hunting, see May 26, 2005 and links from there (Pamela A. MacLean, “Calif. Judge Blasts Firm in Toxic-Warnings Case”, National Law Journal, Apr. 13).
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George Wallace at Declarations and Exclusions points us to a judge who is not afraid to call them as he sees them — “them” in this case being the lawyers who mine California’s over-reaching environmental law purely for profit. In rejecting plaintiffs’ lawyer’s application for $540,000 in legal fees for their effort, here is the judge’s conclusion:
“Given the ease with which it was brought, and the absolute lack of any real public benefit from telling people that things like dried paint may be slowly emitting lead molecules or that parking lots are places where there might be auto exhaust, instead of $540,000, this legal work merited an award closer to a dollar ninety-eight.”
Much much more for your reading pleasure there.
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Writing in the L.A. Times Magazine, Andy Meisler profiles Napa-based environmental lawyer and former SDSer Mark Pollock and his crusade to drive silver dragées, the little confectionery balls found on some Christmas cookies and gingerbread houses, out of the California market (while garnering some nice legal fees at the expense of the bakers, food importers and others he sues). (“A Tempest on a Tea Cart”, Dec. 18). Virginia Postrel calls Pollock a petty tyrant, says his activities illustrate the need for serious litigation reform, and has some kind words for us along the way (Dec. 19; also see Reason “Hit and Run”). Jim Hu at Blogs for Industry (Dec. 20) investigates exactly how hazardous the little silver balls are and finds the apparent answer: not very hazardous, compared with many other things people choose to eat. He also points out that “dragée is pronounced dra-’zhA and is derived from the same root as ‘dredge’”. For more on California environmental-suit bounty-hunting, see Nov. 4-5, 2002, Apr. 6, 2004 and these links.
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