An Alameda County Superior Court Judge has granted summary judgement, dismissing a Proposition 65 lawsuit brought against approximately 100 cosmetic and personal care products companies. The suit alleged that the companies failed to provide clear and conspicuous warnings that titanium dioxide (TiO2) in powdered cosmetic products is known to the State of California to cause cancer.
“Titanium dioxide, airborne, unbound particles of respirable size” is listed as a carcinogen under California’s Proposition 65 list. The state’s Office of Environmental Health Hazard Assessment (OEHHA) listed the chemical on September 2, 2011.
Titanium dioxide is used in a variety of consumer applications, including in cosmetics for UV protection and pigmentation.
The Public Interest Alliance LLC (PIA), a citizen enforcement group that became active Proposition 65 litigants in 2012 filed suit against dozens of cosmetics manufacturers, including Avon, Neutrogena, Revlon and L’Oreal in 2013.
In its 60-day notices PIA claimed that it was possible that the use of the manufacturers’ powdered cosmetics would result in exposure to TI02, and, therefore, require labeling under Prop 65.
However, there were a couple of things PIA overlooked—the first being that the notice would only apply to products containing unbound titanium dioxide airborne particles of respirable size. PIA also failed to demonstrate in its Certificate of Merit submitted to the Attorney General that PIA’s claim has merit.
In his decision, Alameda County Superior Court Judge George C. Hernandez Jr. ruled that the Prop 65 warning requirements extend only to unbound, airborne particles of respirable TiO2.
In addition, Judge Hernandez ruled that testing is required to determine such exposure, and the mere presence of TiO2 does not require labeling.
He rejected PIA’s Certificate of Merit because it relied on air sampling studies of other cosmetic products, rather than testing the specific products named in the complaint.
Judge Hernandez observed that the plaintiff’s expert conceded that not every product covered by the Certificate of Merit would result in exposure to respirable TI02, even if tested.
As a result, the court found that the plaintiff’s Certificates of Merit were “based upon probability and conjecture, and, thus, invalid”, and granted the defendants’ motion for summary judgement.
Jeffrey Judd, PIA’s attorney, said that the court’s ruling was based on legal procedure, and that PIA’s claims – that manufacturers were violating Prop 65 requirements were not met.
The pre-trial discovery process “revealed that not a single cosmetic company has assessed their powder cosmetic products” Judd said to reporters after the court rendered its ruling.
Judd then launched into a lengthy diatribe about the Attorney General’s Certificate of Merit requirements.
“The court’s ruling makes clear that no enforcement action will be brought, until a sufficiently deep-pocketed plaintiff does the toxic exposure assessment that, in our view, is something any responsible manufacturer should do, before it offers a product for sale to the public.”
Judd notes that, while Proposition 65 does not require a plaintiff to perform testing to support a Prop 65 Certificate of Merit, it’s held that “whether testing is required is highly dependent upon the facts of each case.”
In his ruling, Judge Hernandez said that “Plaintiff’s failure to conduct further inquiry to support its Certificate of Merit, before filing its complaints, brings to mind the ‘shake down’ cases concerning other aspects of defective pre-litigation Prop 65 notices.”
Veteran Proposition 65 litigator Michael J. Steel of Morrison & Foerster who represented several defendants in the action told reporters the court’s opinion shows that the Certificate of Merit requirement in Prop 65 cases must be “taken seriously.”
A plaintiff must be able to demonstrate evidence of exposure, he added, rather than “a theory posited by some purported expert” he said.
“The court’s reference to ‘shake downs’ is also noteworthy in that it shows that the courts are increasingly aware that Prop 65 is subject to widespread abuse.”
In two years of litigation, nine defendants reached settlements, while ten others settled before the lawsuit was filed.
PIA stipulated that it would not appeal the ruling.
The Case cited by this Article is: Public Interest Alliance LLC v Access Business Group (Alameda County Sup. Ct. Case No. RG13697992).