Court Finds that Change in Law Applies to Existing Notices

A June 23, 2004 First District Court of Appeal opinion affirms a trial court decision that held the SB 471 amendments, requiring a "certificate of merit," applies to all cases filed after January 1, 2002, even if the case is based on a 60-day notice served before the effective date. The opinion also states that a plaintiff cannot amend its notice to add the certificate after the litigation is commenced. Download the opinion. [Word/PDF]

Conflicting Federal OTC Drug Law Preempts Prop 65

The California Supreme Court has ruled that FDA's actions in refusing permission to nicotine patch manufacturers to put Prop 65 warnings on their products in order to avoid scaring off consumers preempts an action to require the manufacturers to warn under Proposition 65. Download the opinion. [Word/PDF] We also have available the plaintiff's brief and defendant's opening brief.

Courts Interpret "Methods of Detection" Regulation

A published decision for the first time spells out what does not meet Prop 65's confusing "methods of detection" regulation (22 CCR 12901). Download the opinion. [Word/PDF] Meanwhile, a trial court finds that certain testing does not meet the requirements of the regulation. Download the tentative opinion. [PDF] Meanwhile, OEHHA proposes an amendment that would substantially revise the regulation.

Tentative Decision is Mixed Result for Retailers

A 4 1/2 month trial of an enforcement action against retailers for alleged violations of Prop 65 due to exposures to lead from cosmetics and painted glassware results in a tentative decision that finds liability as to the glassware, but not on cosmetics. The decision also rejects a novel false advertising claim. Download the tentative decision in four parts. [Part 1 | Part 2 | Part 3 | Part 4]

AG's Challenges to Settlements Partially Successful

The AG's attempt to derail a consent judgment regarding implanted medical devices is rejected [opposition/order] and is appealed, while his opposition to the carbonless paper settlement results in non-approval.

Court Dismisses Case Against Untested Chocolates

A September 2003 order grants a motion for summary judgment in favor of chocolate companies, reasoning that plaintiff cannot prove an exposure as to those products it has not tested for the presence of listed chemicals. The ruling led to a $20,000 settlement on the remaining claims.

AG Sues Private Enforcers Over Mishandling of Funds

The Attorney General has filed unfair competition lawsuits against three Prop 65 private enforcers, alleging that they misused funds collected in Prop 65 settlements for improper purposes, such as musical instruments and credit card debt. The enforcers sued were Consumer Cause, California Community Health Advocates, and Consumer Advocacy Group. See the story in the Sacramento Bee.

AG Brings New Enforcement Actions

The AG has filed recent enforcement actions over mercury in canned tuna and lead in jewelry. A companion to his case over mercury in fresh/frozen seafood, the AG says his enforcement action over canned tuna "is a crucial public health issue." See press release. The jewelry case, spurred by 60-day notices served by Center for Environmental Health and As You Sow, has generated national press.

Court Rejects Diesel Case

The Second District Court of Appeal, in an unpublished opinion, determines that an enforcement action was barred under res judicata by a previous enforcer's action. The decision - after trial - stands in contrast to the panel's previous pretrial decision rejecting the res judicata defense.

Judge Reduces Fee Request for "Inefficient" Litigation

An Alameda court has awarded Michael DiPirro about 50% of the $177K he sought in fees to enforce a case where the defendant provided a warning before litigation commenced, faulting plaintiff's strategy and decisions "for the inefficient litigation that resulted." We have the tentative decision for download.

Private Enforcers Square Off

Consumer Defense Group has sued Consumer Advocacy Group, alleging that the latter has improperly settled a number of enforcement actions over second-hand smoke, and asking the court to disgorge the settlement funds. CDG also has appealed the settlements reached by CAG and hotels.

Last Updated Wednesday, July 7, 2004

Courts Issue Rulings on Prop 65's Year Statute of Limitations

Dismissal of Action Against Herbal Supplements Affirmed

Court Finds Vaccine Case Preempted