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Court of Appeal:
Water Pipes Need Not Carry Cancer Warning
Opinion Says Proposition 65 Doesn’t Apply Because
Product Could Be Used Without Marijuana
By a MetNews Staff Writer
Water pipes—or “bongs”—need not carry Proposition 65 labels based on the mere foreseeability that they would be used with marijuana, the First District Court of Appeal held yesterday, because such implements could be used without carcinogenic substances.
Mendocino Superior Court Judge Cindee F. Mayfield, sitting on assignment, authored the opinion for Div. Two. It upholds a judgment on the pleadings in favor of the defendant, Sream, Inc., in a private enforcement action brought by Environmental Health Advocates, Inc. (“EHA”).
The plaintiff contended that under the Safe Drinking Water and Toxic Enforcement Act of 1986, enacted through voter-approval in 1986 of Proposition 65, a warning is necessary in light of the cancer-causing propensities of marijuana. At issue was Health & Safety Code §25249.6 applies.
It 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, except as provided in Section 25249.10.”
Trial Court’s Decision
In granting judgment to the defendant, Alameda Superior Court Judge James Reilly reasoned:
“Plaintiff does not allege that Defendant’s ‘bong/water pipe products’ that are the subject of this action contain any chemical that causes cancer or reproductive toxicity or that they necessarily emanate any such chemical. Rather, Plaintiff alleges that Defendant’s products, if used with marijuana, produce marijuana smoke, which is a carcinogen regulated by Proposition 65. Plaintiff does not allege that the Defendant’s products can only be used with marijuana, or that their use with other substances emanates any carcinogen subject to Proposition 65.”
He added:
“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.”
Possible Confusion
Agreeing, Mayfield wrote:
“Here, EHA does not allege direct contact, but instead that individuals ‘may be exposed to marijuana smoke’ if they use Sream’s water pipe products with marijuana. (Italics added.) 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.”
She declared:
“EHA’s allegation that consumers may be exposed to marijuana smoke through reasonably foreseeable use of Sream’s products, depending on how the consumers choose to use that product, is insufficient to satisfy the exposure requirement of section 25249.6.”
The case is Environmental Health Advocates, Inc. v. Sream, Inc., A163346.
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