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Prop 65

Several environmental groups say objects accessible to visitors at Disney parks, such as brass knobs, test positive for lead. “The groups filed suit against Disneyland in April based on a California law that requires businesses to post warnings when lead levels in fixtures and other items exceed certain levels.” Lead in brass and similar stable alloys is often regarded as posing little or no danger as compared with lead in more readily ingestible forms, but has nonetheless been swept in for similar treatment under various ill-conceived laws. [Orlando Sentinel]

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“When consumers in California visit the Dunkin’ Donuts website hoping to order a bag of their favorite java, they are met with the following message: ‘Important Notice: We are temporarily suspending the shipment of orders to California while we work to comply with Proposition 65 with the State of California. We apologize for any inconvenience.’” Acrylamide, a compound naturally present in many roasted or cooked foods, is among the hundreds of substances that must be warned against under Prop 65, which has led, as we noted in May, to a lawsuit against more than 40 coffee companies. [TechNewsWorld] Author Vivian Wagner quotes me:

“The law empowers private litigants to enforce its terms without having to show that any consumer has been exposed to any material or substantial risk, let alone harmed,” Walter Olson, a senior fellow at the Cato Institute, told the E-Commerce Times. “As a result, entrepreneurial law firms roam the state identifying new, often far-fetched, unwarned-of risks and extracting cash settlements along with promises to warn from hapless defendants.”

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The latest surprising application of California’s toxic-warnings law [Ken Odza]

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May 12 roundup

by Walter Olson on May 12, 2011

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April 26 roundup

by Walter Olson on April 26, 2011

  • Study of how class action lawyers interact with their named clients [Stephen Meili via Trask]
  • California releases numbers on how bounty-hunting lawyers did in 2010 under Prop 65 environmental-warning law [Cal Biz Lit]
  • According to the tale, lender errors in foreclosure gave Florida borrower home free and clear. Actual story may be more complicated than that [Funnell]
  • The very long discovery arm of the Philadelphia, and Pennsylvania, courts [Drug & Device Law, more]
  • UK law firm “could face big bill” after sending thousands of file-sharing demand letters [ABA Journal]
  • Goodbye to men’s track at U. of Delaware, and the women’s team is suffering too, as often happens with Title IX [Saving Sports]
  • OSHA’s proposed “illness and injury prevention program” (I2P2) termed a “Super Rule” with potentially widespread economic impact [Kirsanow, NRO]

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January 21 roundup

by Walter Olson on January 21, 2011

The Consumer Product Safety Commission has repeatedly delayed the implementation of the testing and certification rules required by the Consumer Product Safety Improvement Act of 2008, the economics of which is likely to capsize many smaller producers. Now time may be running out for further extensions after the Feb. 10 deadline. [Rick Woldenberg, AmendTheCPSIA.com] Comments from affected parties are here.

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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.

September 30 roundup

by Walter Olson on September 30, 2009

  • CBS declares victory as court dismisses Dan Rather suit [LA Times, Beldar, earlier]
  • Gordon Crovitz on new Harvey Silverglate book Three Felonies a Day [WSJ]
  • Controversy continues on Long Island over D.A.’s refusal to prosecute Hofstra false-rape complainant [Greenfield, earlier]
  • Latest publicity stunt by animal-rights group is to sue KFC demanding labeling of chicken as cancer-causing under California’s Proposition 65 [San Francisco Chronicle; more on soi-disant Physicians Committee for Responsible Medicine]
  • “Hertz Sues Firm That Said It Might Go Bankrupt” [Business Insider, Corporate Counsel]
  • “What would Orwell make of a nation in which mothers are investigated for looking after each other’s children?” [Jackie Kemp, Guardian via Skenazy; earlier]
  • Power behind the throne? “New Cohen Milstein Practice Group to Help State AGs Sue & Litigate” [ABA Journal]
  • London restaurant stops asking customers to sign disclaimers if they want to order hamburgers rare or medium-rare [five years ago on Overlawyered]

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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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May 18 roundup

by Walter Olson on May 18, 2009

  • Historic preservation and habitat preservation laws can backfire in similar ways [Dubner, Freakonomics]
  • Serious points about wacky warnings [Bob Dorigo Jones, Detroit News]
  • Texas solons consider lengthening statute of limitations to save Yearning for Zion prosecutions [The Common Room]
  • A call for law bloggers to unite against content-swiping site [Scott Greenfield]
  • Drawbacks of CFC-free pulmonary inhalers leave asthma sufferers gasping [McArdle, Atlantic]
  • Try, try again: yet another academic proposal for charging gunmakers with costs of crime [Eggen/Culhane, SSRN, via Robinette/TortsProf] More/correction: not a new paper, just new to SSRN; see comments.
  • California businesses paid $17 million last year in bounty-hunting suits under Prop 65 [Cal Biz Lit]
  • Trial lawyer lobby AAJ puts out all-points bulletin to members: send us your horror stories so we can parade ‘em in the media! [ShopFloor]

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April 3 roundup

by Walter Olson on April 3, 2009

  • Those enviro-hazard warnings plastered all over because of Prop 65? They may be not merely pointless but untrue [California Civil Justice; a still-timely 2000 piece]
  • Is it somehow wrong for a public medical examiner to testify against cops — even when it’s in another county? [Radley Balko, Reason]
  • UCLA research scientists fight back against animal rights fanatics’ violence and intimidation [Orac/Respectful Insolence, "Pro-Test"]
  • Ezra Levant, himself a target of Canada’s official speech tribunals, has written a new book denouncing them, buy before they ban it [Amazon; Andrew Coyne, Maclean's] Has odious censorship-complaint-filer Richard Warman finally gotten his comeuppance? [Ken @ Popehat] More: another Warman case [Cit Media Law]
  • Roundup of recent sports/assumption of risk cases [John Hochfelder]
  • Already in trouble on charges of faking a will, Allentown, Pa. police-brutality attorney John Karoly now faces tax charges including alleged failure to report $5 million in income for 2002, 2004 and 2005 [TaxGirl]
  • Lawprof’s “Reparations, Reconciliation and Restorative Justice” seminar led to introduction of Maryland bill requiring insurers to disclose antebellum slaveholder policies [DelmarvaNow]
  • Judge tosses suit by Clarksville, Tennessee officials against activists who called them cozy with developers [Sullum, Reason "Hit and Run"]

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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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More Prop 65 follies

by Ted Frank on August 13, 2007

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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