Wednesday, September 19, 2001
Court of Appeal Rules:
Testosterone-Raising Supplements Don’t Need Proposition 65 Warnings
By ROBERT GREENE, Staff Writer
One of the country’s leading nutritional products suppliers did not violate California’s Proposition 65 by distributing supplements that raise, but do not contain, testosterone, this district’s Court of Appeal ruled yesterday.
In a ruling upholding Los Angeles Superior Court Judge Marilyn L. Hoffman, Div. Five ruled that products produced by Weider Nutrition Group and related companies do not directly “expose” users to chemicals that cause cancer.
Testosterone, the human male hormone, has been found to cause cancer when it is present in elevated amounts. Bodybuilders, weightlifters and other athletes have been known to use the hormone to improve their performance.
Weider’s products do not contain testosterone, but they contain substances—known as DHEA, or dehydroepiandrosterone, and Andro, or Androstendiols, which when ingested cause a chemical reaction that raises testosterone levels in the body.
Weider was sued by Consumer Cause, Inc., under Proposition 65, the 1986 initiative that bans the knowing and intentional exposure to people of a cancer-causing chemical without first providing a warning.
Proposition 65 warnings are now commonplace in buildings containing asbestos, petroleum products or other materials that have been determined to cause cancer.
The Weider products contain no such warning because, the state attorney general argued as amicus, the products are themselves not directly cancer-causing and so do not expose a consumer to cancer within the meaning of the Safe Drinking Water and Toxic Enforcement Act of 1986—the more formal name for Proposition 65.
The controlling rule of law, the attorney general argued, is California Code of Regulations title 22 sec. 12201 subdiv. (f), which defines exposure for purposes of the act. The lead policymaking institution is the state Environmental Protection Agency, but prior to 1991 it was the Health and Welfare Agency.
“In our view,” Presiding Justice Paul Turner wrote, “although the issue is close, the Attorney General correctly reasons that defendants’ products, which are noncarcinogenic, do not expose a consumer to cancer within the meaning of the act.”
Weider responded to the lawsuit with a demurrer, which Hoffman sustained.
Using the regulations as a guide, Turner noted that the Weider products do not cause cancer when they initially come into human contact. Only later do they produce a reaction that in turn raises the level of testosterone to levels that are above normal and considered unsafe.
The attorney general’s analysis “harmonizes the act and its regulations as a whole and provides a commonsense test for evaluating whether a chemical must provide the statutorily mandated warnings,” the presiding justice said.
He acknowledged that there were some persuasive arguments on the other side, including the statement of voter intent declaring the people’s right to be informed of exposures that cause cancer, birth defects or other reproductive harm.
Turner also noted that the act must be accorded broad interpretation, and that one could arguably conclude that makers of substances such as Weider’s should warn about the dangers of using them, since they could play a role in causing cancer.
But the presiding justice also noted that he and his panel reviewed the voter pamphlet prepared for Prop. 65 and noted that the arguments focused on exposure to carcinogenic chemicals. Exposure is defined in the regulations in terms of a chemical that comes into contact with a person.
“There is nothing in the ballot statement which suggests Proposition 65 was intended to apply when a person is exposed to a noncarcinogenic chemical which then causes a substance naturally occurring in the body to become carcinogenic,” Turner said. “In the absence of anything in the statutory language, regulations, or the Proposition 65 voter pamphlet indicating the act was to apply in these circumstances, the trial court correctly sustained the demurrer without leave to amend.”
The case is Consumer Cause, Inc. v. Weider Nutrition International, Inc., B147481.
Copyright 2001, Metropolitan News Company