Environmental Health Advocates, Inc. v. Sream, Inc.Environmental Health Advocates, Inc. v. Sream, Inc.
Environmental Health Advocates, Inc. (EHA) filed a private enforcement action against Sream, Inc. (Sream), alleging Sream had failed to provide a warning that its water pipe products exposed consumers to marijuana smoke in violation of California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (
The trial court granted Sream’s motion for judgment on the pleadings, finding EHA had not alleged that Sream’s water pipes require marijuana to function or can only be used with marijuana.
EHA now challenges this ruling on appeal, arguing that the trial court (1) erred in applying the wrong test to determine whether a Proposition 65 warning was required for Sream’s products and making disputed factual findings under that test; and (2) abused its discretion in denying EHA’s request for leave to amend. We affirm.
BACKGROUND
A. Proposition 65
Proposition 65 was enacted as an initiative measure in 1986 and added sections 25249.6 through 25249.13 to the
Sectiоn 25249.12 requires the Governor to designate a “lead agency” to implement the provisions of Proposition 65. That agency has the authority to “adopt and modify regulations, standards, and permits as necessary to conform with and implement this chapter and to further its purposes.” (§ 25249.12, subd. (a).) The Governor originally designated the Health and Welfare Agency as the lead agency for Proposition 65. (Nicolle-Wagner, supra, 230 Cal.App.3d at p. 655.) In 1995, the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment
(OEHHA) was designated as the lead agency. (Cal. Code. Regs., tit. 27, § 25102, subd. (o).)3
Section 25249.8 also requires the Governor to “cause to be published a list of those chemicals known to the state to cause cancer or reproductive toxicity within the meaning of this chapter,” which is to be “revised and republished in light of additional knowledge at least once per year thereafter.” (§ 25249.8, subd. (a).) “Marijuana smoke” was added to the list of carcinogens in 2009. (Regs., § 27001, subd. (b).)
In 2016, OEHHA adopted regulations concerning “ ‘safe harbor’ ” warnings as set forth in article 6 (Regs., §§ 25600–25607.35).4 (OEHHA, Final Statement of Reasons, 27 Cal. Code Regs., art. 6 (Sept. 2016) p. 9 (2016 FSOR).) Among other things, they contained definitions relevant to article 6 and set forth a new regulation “addressing the relative responsibility of product manufacturers and others in the chain of distribution, versus the product retail seller.” (2016 FSOR, supra, p. 9.)
EHA filed a complaint against Sream on November 12, 2020, asserting a single cause of action for violation of Proposition 65. The complaint alleged that Sream “exposеs consumers to marijuana smoke by manufacturing, importing, selling, and/or distributing Roor Classic Straight 5mm Orange & Blue and other similar bong/water pipe products (‘Products’).” It further alleged that this exposure constituted a violation of section 25249.6 because Sream had failed to provide a clear and reasonable warning to consumers and individuals in California “who may be exposed to marijuana smoke through reasonably foreseeable use of the Products.” EHA sought civil penalties for Sream’s alleged violations of Proposition 65; injunctive relief against Sream from manufacturing, importing, selling, and/or distributing the products without a clear and reasonable warning; and attorney fees and costs.
C. Sream’s Water Pipes
Sream is based in California and manufactures water pipes with the Roor trademark as the exclusive licensee of the brand within the United States. A water pipe typically consists of a chamber that contains water, along with a mounted bowl that contains a particular substance. A user can burn the substance and create suction to draw smoke through the water, where the smoke is cooled before it is ultimately inhaled.
According to Sream, its packaging and labels have long included the statement that such products “should be sold, marketed or used for legal, non-prohibited use only.” Since July 2020, Sream has also placed the following label on its products as a “purely defensive” measure: “WARNING: This product can expose you to chemicals including arsenic, which is known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov.”5
D. Judgment on the Pleadings
Sream moved for judgment on the pleadings, arguing that Proposition 65 did not apply to its water pipe products. The trial court granted the motion. It stated: “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,
The trial court continued: “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.” It found EHA’s allegation—that it was “reasonably foreseeable” consumers may be exposed to marijuana, depending on how they choose to use a water pipe—insufficient to subject manufacturers or distributors of such products to Proposition 65 requirements. The trial court determined that, under the facts as alleged by EHA, Sream’s products were not subject to Proposition 65 and dismissed the action with prejudice. This appeal followed.6
DISCUSSION
In this appeal, EHA seeks reversal of the judgment on the pleadings and dismissal of its action with prejudice.
A defendant may move for judgment on the pleadings on the ground that the complaint does not state facts sufficient to constitute a cause of action against that defendant. (
deductions or conclusions of fact or law. (Sprague v. County of San Diego (2003) 106 Cal.App.4th 119, 127.) “If a judgment on the pleadings is correct on any theory of law applicable to the case, we will affirm it regardless of the considerations used by the superior court to reach its conclusion.” (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 185Ott v. Alfa-Laval Agri, Inc. (1995) 31 Cal.App.4th 1439, 1448.)
Here, EHA argues in the alternative that either (1) the trial court erred in granting the motion for judgment on the pleadings upon finding there were insufficient facts to constitute a Proposition 65 claim against Sream; or (2) the trial court abused its discretion in denying EHA leave to amend. We address each argument in turn.
I. No Error in Granting Judgment on Pleadings
EHA argues that the trial court erred in granting Sream’s motion for judgment on the pleadings based on an “erroneous and incorrect” test for determining whether a Proposition 65 warning was required. Section 25249.6 states, in relevant part, that “[n]o 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[.]” The key question is thus one of statutory interpretation: whether Sream’s water pipe products “expose” consumers to marijuana smoke within the meaning of section 25249.6.
In answering such a question, “ ‘our primary task is to determine the lawmakers’ intent’ ” and the process “to ascertain that intent may involve up to three steps.” (MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082.) First, we look to the words of the statute itself as “chosen language is the most reliable indicator of its intent.” (Id. at p. 1082.) “If the statutory language is clear and unambiguous, our task is at an end, for there is no need for judicial construction.” (Id. at p. 1083.) When the plain meaning of the text does not resolve the question, we proceed to the second step and turn to maxims of construction and extrinsic aids, including legislative history materials. (Ibid.) We may also look to the interpretation of a statute by the administrative agency with the power to adopt regulations to effectuate the statutory purpose. (Lee v. Amazon.com, Inc. (2022) 76 Cal.App.5th 200, 229 (Lee).) “We defer, to some extent, to the technical skill and expertise of the rulemaking agency in interpreting the statutes at issue.”
We conclude that the plain language of section 25249.6 is not dispositive here. The term “expose” is not defined anywhere in Proposition 65. (See
We thus turn to the Proposition 65 regulations to help inform our interpretation of the term. Regulations section 25102, subdivision (i) defines “expose” as “to cause to ingest, inhale, contact via body surfaces or otherwise come into contact with a listed chemical. An individual may come into contact with a listed chemical through water, air, food, consumer products and any other environmental exposure as well as occupational exposures.”
The Health and Welfare Agency explained its reasoning for this definition in its January 1988 Final Statement of Reasons. (Health & Welf. Agency, Final Statement of Reasons, 22 Cal. Code Regs., Div. 2 (Jan. 1988) p. 29 (1988 FSOR).) “Because the Act was titled the Safe Drinking Water and Toxic
The original lead agency thus understood Proposition 65 to prohibit any act that directly brings a consumer into contact with a listed chemical. (1988 FSOR, supra, p. 29.) Other portions of the January 1988 FSOR are consistent with that interpretation. Discussing the exposure prohibition in the context of agricultural products, the agency rejected any assumption that such an exposure occurs only on the date that a particular product is consumed. (Id. at p. 9.) It stated: “The term ‘expose’ generally means ‘to lay open’, as to something which is injurious or dangerous. Laying an individual open to a chemical hazard through a consumer product could result from any act which propels the product toward the individual.” (Id. at p. 19.) The agency thus explained that the scope of the term could include conduct that “propels” the product towards a consumer, not the chemical hazard. (Ibid.)
This interpretation is also consistent with the explicit purpose of Proposition 65. The preamble to Proposition 65 states: “The people of California find that hazardous chemicals pose a serious potential threat to their health and well-being, that state government agencies have failed to provide them with adequate protection, and that these failures have been serious enough to lead to investigations by federal agencies of the administration of California’s toxic protection programs. The people therefore declare their rights: [¶] (a) To protect themselves and the water they drink against chemicals that cause cancer, birth defects, or other reproductive harm. [¶] (b) To be informed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm. [¶] (c) To secure strict enforcement of the laws controlling hazardous chemicals and deter actions that threaten public health and safety. [¶] (d) To shift the cost of hazardоus waste cleanups more onto offenders and less onto law-abiding taxpayers.” (Ballot Pamp., Gen. Elec. (Nov. 4, 1986) text of Prop. 65, p. 53.) Thus, Proposition 65 “is not primarily about punishment for harm that has been inflicted; it is about protection from harmful chemicals, the ability to make informed choices about coming into
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 marijuanа. (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.
Given the definition of “expose” from Regulations section 25102, subdivision (i) and its related agency interpretation, we conclude that EHA’s allegations were insufficient to constitute a cause of action under section 25249.6. Contrary to EHA’s contention, that determination was not based on “disputed factual findings.” The complaint did not allege that Sream’s water pipes can only be used with marijuana or require marijuana to function. EHA does not argue that it could make such allegations, only that it could “further explain that bongs are predominantly, if not exclusively, used to smoke marijuana and not for other non-exposure creating purposes.” (Italics added.) EHA instead relies on its allegation that individuals “may be exposed to marijuana smoke” through “reasonably foreseeable use” of the water pipe products. Such allegations do not satisfy the agency definition and interpretation of the term “expose” and, as explained in part B, post, EHA presents no basis for application of a “reasonably foreseeable use” standard to this term.
EHA’s other arguments to the contrary do not alter this conclusion. EHA contends that the standard adopted by the trial court was contrary to (1) the remedial nature of Proposition 65; (2) the “reasonably foreseeable use” standard in Regulations section 25600.1, subdivision (e); and (3) opinion letters of the Attorney General. We address each in turn.
A. Remedial Nature of Proposition 65
EHA argues that the trial court “did not acknowledge or address the remedial nature of Proposition 65 or address why it was appropriate to narrowly construe Proposition 65’s warning requirements for bong products.” “ ‘Proposition 65 is a “right to know” statute requiring companies that expose consumers to carсinogens or reproductive toxins to provide a reasonable and
B. “Reasonably Foreseeable Use” Standard
EHA also argues that Proposition 65 requires a warning for exposure to a chemical stemming from “reasonably foreseeable use” of the product. To support this position, EHA relies on the definition of “consumer product exposure” provided in article 6 of the Proposition 65 regulations as “an exposure that results from a person’s acquisition, purchase, storage, consumption, or any reasonably foreseeable use of a consumer product, including consumption of a food.” (Regs. § 25600.1, subd. (e).) Such reliance is misplaced. Regulations section 25600, subdivision (a), explicitly states: “Nothing in Article 6 shall be interpreted to determine whether a warning is required for a given exposure under Section 25249.6 of the Act.”
As the Health and Welfare Agency explained in its 1988 RFSOR: “The definition of ‘consumer products exposure,’ however, is not intended to establish when an exposure occurs. It is intended to address the availability of the ‘safe harbor’ warning. The term ‘expose’ is defined elsewhere as meaning ‘to cause to ingest, inhale, contact via body surfaces or otherwise come into contact with a chemical.’ (22 C.C.R. § 12201(f).)” (1988 RFSOR, supra, p. 10.) As expressed in both the regulations and related agency interpretation, we conclude that the “reasonably foreseeable use” element of Regulations section 25600.1, subdivision (e) does not apply to the term “expose” in section 25249.6.
Beyond Regulations section 25600.1, EHA argues that the “reasonably foreseeable use” standard should govern the term “expose” for three other reasons. First, EHA argues that the inclusion of the term “knowingly” in section 25249.6 “incorporates a foreseeability and constructive knowledge standard.” We addressed this “knowingly” element in Lee, as the trial court had determined that the element required proof of Amazon’s actual knowledge that the face cream products contained mercury. (Lee, supra, 76 Cal.App.5th at p. 228.) We interpreted the “knowingly” element to include constructive knowledge, consistent with the agency interpretation in the 1988 RFSOR. (Lee, at pp. 230, 236; 1988 RFSOR, supra, p. 39 [“The Agency interprets the requirement that exposures be ‘knowing and intentional’ to include exposures about which there is constructive knowledge”].) More recent agency interpretation may also support application of a foreseeability standard for the “knowingly” element. The 2016 FSOR states: “If a person’s use of a product is ‘reasonably foreseeable” even if it is not entirely consistent
Second, EHA argues that the Proposition 65 regulations reference “responsibility” for an exposure and that concept “is similar to and should be read in harmony with ‘foreseeability,’ as foreseeability addresses to what extent one will be held legally responsible for a certain result.” Again, this argument conflates the “knowingly” and “expose” elements of section 25249.6. As the agency interpretation in the 1988 RFSOR states: “use of the term ‘foreseeable’ is intended to define the limits of that constructive knowledge and of exposures for which businesses can reasonably be held responsible.” (1988 RFSOR, supra, p. 39.)
Third, EHA cites Consumer Cause, Inc. v. Arkopharma, Inc. (2003) 106 Cal.App.4th 824 (Consumer Cause) to argue that courts “have also looked at ‘actual use’ of the product in determining if a Proposition 65 warning is required” and that such a standard “is similar to, if not broader than, foreseeable use.” Consumer Cause explained that the “ ‘actual use’ ” test (not “mere possibility of use”) is applied to determine whether a product is fit for beverage use, and thus requires a Proposition 65 warning for “ ‘ethyl alcohol in beverages.’ ” (Consumer Cause, at p. 830; Regs., § 27001, subd. (c).) That test is inapposite here.
C. Attorney General Opinion Letters
Finally, EHA argues that the trial court’s ruling “cannot be squared with the positions taken by the California Attorney General who is in charge of filing Proposition 65 cases and supervising private enforcement actions like this one.” A private action may be commenced for an alleged violation of section 25249.6 where (1) 60-day notice is provided to the alleged violator, the Attorney General, district attorneys and city attorneys in the jurisdiction where the violation occurred; and (2) no public official has already commenced prosecution of the same violation. (§ 25249.7, subd. (d).) “If, after reviewing the factual information sufficient to establish the basis for the certifiсate of merit and meeting and conferring with the noticing party
In 1995, the Attorney General issued a letter in response to a notice alleging that “an entity that manufactures, distributes, or sells ‘dry clean only’ clothing” violated Proposition 65 because it was responsible for exposures to perchloroethylene, a solvent used for dry cleaning. (Regs., § 27001, subd. (b) [also known as tetrachloroethylene].) It explained that while the clothing manufacturer “indeed knows that thе exposure will occur, it is an indirect consequence of the intended use of the product. We think, however, that the exposure is more directly the result of ‘receiving a consumer service,’ i.e., dry cleaning, than the result of the purchase of the garment.” While there is no intervening service provider (like the dry cleaner) here, the basis for the Attorney General’s reasoning still applies: marijuana smoke is an indirect consequence of the purchase of Sream’s water pipe, if the consumer chooses to use it to smoke marijuana.
As the question about “ ‘dry clean only’ clothing” raised “a number of issues concerning the responsibility for exposures where the exposure results in some way from the interaction of twо or more products or services,” the Attorney General also “decided to address the issues more broadly” through different scenarios. It stated that the provider of a gas-powered lawn mower is responsible for an exposure to benzene. “While not actually a product of combustion, the combustion process and subsequent venting of engine exhaust in the vicinity of the operator convert the benzene from a liquid form in which exposure would be minimal, into a gas form, or at least particles carried in a gas.” On the other hand, the manufacturer of a “passive vessel” is not responsible for an exposure. “For example, the provider of a champagne glass is not responsible for exposure to alcoholic beverages consumed from the glass, even though such exposure is the result of the known and intended use of the product. The provider of the vessel has done nothing to increase the level of exposure to the listed chemical, but has simply provided an item that is necessary or helpful in use of the product that actually contains the listed chemical.”
In 1997, the Attorney General issued a letter regarding diesel vehicles. It explained that manufacturers of diesel vehicles are not responsible for providing public warnings of environmental exposures “resulting from operation of such trucks in circumstances where the violations are within the control of the operator but not the manufacturer.” It concludеd, however, that the manufacturers “would remain responsible for consumer exposures, such as exposures occurring to drivers and operators of diesel trucks” based on diesel engine exhaust resulting from the vehicle’s normal emissions.
In 2011, however, the Attorney General issued a letter in response to notices alleging consumers were exposed to alcoholic beverages associated with alcohol abuse through the sale of “ ‘alcoholic drinking games and novelties’ ” that include “ ‘beer pong’ game sets, folding tables decorated with the logos of sports teams, containers from which to drink liquids, and ping pong balls.” The notices alleged that such exposure “occurs through the ‘normal, foreseeable, and intended use of the products.’ ” The Attorney General urged the withdrawal of such notices, analogizing these products to its previous champagne glass example. It concluded that Proposition 65 does not require a warning for objects that are “commonly used to hold alcoholic beverages or may be used at the time individuals are consuming alcoholic beverages.”
As a preliminary matter, these Attorney General letters clearly reject the “foreseeability” test that the EHA advances here. Moreover, in the letter regarding beer pong game sets and other “ ‘alcoholic drinking games and novelties,’ ” the Attorney General interpreted its “passive vessel” rule to include products that may have an indirect effect on thе consumption of a listed chemical (alcoholic beverages, when associated with alcohol abuse) depending on how consumers use the product. The trial court’s ruling here is consistent with that interpretation.7
In sum, we conclude that the trial court did not err in finding EHA had alleged insufficient facts for its Proposition 65 claim and granting the motion for judgment on the pleadings.
EHA argues that, even if the motion for judgment on the pleadings was properly granted, the trial court abused its discretion in denying leave to amend. In answering this question, we must consider whether there is a “ ‘reasonable possibility’ ” that the defect can be cured by amendment: if so, the denial constitutes an abuse of discretion. (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 876.) “ ‘The burden of proving such reasonable possibility is squarеly on the plaintiff.’ ” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
EHA has not met its burden. As described above, EHA does not offer any proposed additional allegations to show that Sream’s water pipe products directly bring consumers into contact with marijuana smoke. It does not suggest that Sream’s water pipe products necessarily emanate marijuana smoke or require marijuana to function. Instead, EHA continues to rely on
its previously alleged “foreseeability” standard to argue that it could “further explain that bongs are predominantly, if not exclusively, used to smoke marijuana and not for other non-exposure creating purposes.” (Italics added.) EHA also suggests it could articulate how water pipes “maximize exposure to marijuana smoke.” Such allegations would still be insufficient because they relate to a possible indirect consequence, depending on how consumers choose to use the water pipes. We thus conclude that the trial court did not abuse its discretion in denying EHA’s request for leave to amend.
DISPOSITION
The judgment is affirmed. Sream is entitled to its costs on appeal.
Mayfield, J.*
We concur:
Richman, Acting P.J.
Stewart, J.
Environmental Health Advocates, Inc. v. Sream, Inc. (A163346)
* Judge of the Mendocino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Trial Court: Alameda County Superior Court
Trial Judge: Hon. James Reilly
Attorneys for Appellant: Nicholas & Tomasevic, LLP
Shaun A. Markley
Craig M. Nicholas
Jake W. Schulte
Glick Law Group, PC
Noam Glick
Attorneys for Respondent: Environmental General Counsel, PC
Catherine W. Johnson
Julia S. Thrower
Attorneys for Amicus Curiae Bio Hazard, Inc. on behalf of Respondent: Stern & Goldberg
Alan N. Goldberg
Peter A. Tran