The California Court Of Appeal Limits The Scope Of Proposition 65

Co-written by Rebecca Ceniceros

On September 18, 2001, the California Court of Appeal ruled in favor of Livingston & Mattesich’s client, a nutritional supplement manufacturer, and refused to expand Proposition 65 far beyond its original parameters. In Consumer Cause, Inc. v. Weider Nutritional International, Inc., the plaintiff asserted that warnings are required when products contain ingredients that, although not carcinogenic in and of themselves, cause the human body to produce an increased level of a natural chemical that causes cancer. The appellate court agreed with Livingston & Mattesich and its client that the Proposition 65 warning requirement may not be interpreted so broadly.

The Case

Manufacturers of nutritional supplements were sued for violation of Proposition 65 based upon their sale of products containing Dehydroepiandrosterone (DHEA) and Androstenediols (Andro). Neither DHEA nor Andro is included on the State of California Proposition 65 list as carcinogenic. According to the plaintiff, however, DHEA and Andro, after they are consumed, increase naturally occurring levels of testosterone in the human body. Testosterone itself is a listed carcinogen. Because defendant’s products cause an internal rise in a naturally occurring cancer-causing chemical, the plaintiff claimed, a warning is required.

In plaintiff’s view, requiring a warning was consistent with the intent of Proposition 65---to provide the public with warnings whenever products play a role in causing cancer. Livingston & Mattesich argued that doing so would expand Proposition 65 far beyond its literal language and legislative intent. Given the infinite variability of human biological functions, the firm explained, companies would not be able to predict if the ingredients in their products might eventually be related by an internal bodily process to a listed chemical. Proposition 65 would become virtually infinite in its scope and its applicability to any one product would be sheer guesswork. The firm also asserted that, a listed, carcinogenic chemical must be contained within a consumer product before it can give rise to a statutory exposure that requires a warning.

The California Attorney General’s office weighed in on the issue. It stated that under Proposition 65 regulations, an exposure occurs only when a listed chemical exists outside the body, and thereafter comes into contact with the body. While slightly different from the firm’s position that a cancer-causing chemical must be contained within a product to give rise to an exposure, the Attorney General’s position supported the defendant’s ultimate contention --- the internal increase of a listed substance within the body does not require a warning.

The Court of Appeal concluded that a warning is required only when an individual comes into contact with a chemical from outside the body, and does not include what happens inside the body to transform the chemical into something else. According to the Court of Appeal, "when defendants’ products initially come into human contact, they do not cause cancer." It observed that requiring the chemicals to contact individuals from outside the body "harmonizes the act" and "provides a common-sense test" for evaluating whether warnings are required.

As a result of this decision, manufacturers of consumer products do not have to speculate whether the chemicals contained in their products, even though not identified as carcinogenic, could eventually evolve into a listed chemical inside the human body. A rule to the contrary would have imposed immense practical difficulties in ascertaining whether Proposition 65 applied to any given product. Under the court’s decision, manufacturers can determine their obligations under Proposition 65, for the most part, by comparing the ingredients in their products to the state’s list of chemicals that cause cancer or reproductive harm.