A U.S. District Court Judge in San Francisco has dismissed a case brought by a Proposition 65 citizen enforcer that alleged violations of Proposition 65 under the state’s Unfair Competition Law and a related consumer protection statute that would have barred the sale of e-Cigarettes based on violations of Proposition 65.
U.S. District Court Judge James Donato ruled that plaintiff Jerod Harris must show a violation of a law in his complaint other than Proposition 65, because he failed to provide the 60-day notice of violation required by the statute prior to filing his lawsuit in the U.S. District Court.
Harris filed his initial complaint on September 8, 2015, alleging violations of the Consumers Legal Remedies Act, California Civil Code § 1750, et seq. (CLRA) and the deceptive and unfair business prongs of California’s Unfair Competition Law, Business and Professions Code § 17200, et seq. (UCL).
The claims were based on R.J. Reynold’s alleged failure to disclose or warn of the presence of carcinogenic chemicals in aerosols produced by VUSE electronic cigarettes, namely formaldehyde and acetaldehyde.
Harris alleged that R.J. Reynold’s VUSE misrepresented its products in the course of advertising and marketing in his UCL claim for deceptive business practices. Harris requested damages and injunctive relief “requiring Defendant to place clear and reasonable warnings on the packaging of the Products that use of the Products exposes the user to formaldehyde and acetaldehyde, chemicals known to the State of California to cause cancer.
On the same day that the complaint was filed, Harris served Proposition 65 notices to the alleged violator and to public prosecutors throughout California.
The parties later stipulated to the filing of an amended complaint and Harris filed an amended complaint on November 20, 2015, adding a new claim under the unlawful prong of the UCL for express violation of Proposition 65.
Subsequently, R.J. Reynolds moved to dismiss the case on the grounds that Harris failed to comply with Proposition 65 notice requirements before filing his initial complaint.
Judge Donato in his statement of decision observed that a complaint will survive a Rule 12(b)(6) motion to dismiss when it alleges “enough facts to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” he wrote.
A private plaintiff may sue under the warning section of Proposition 65 only after he has provided a 60-day notice of the alleged violation and a certificate of merit to the alleged violator, the California Attorney General, and the district attorney, city attorney, or prosecutor in each jurisdiction where the alleged violation occurred, Judge Donato explained.
The notice requirements are intended to encourage the resolution of disputes without litigation and give the Attorney General an opportunity to discourage the filing of frivolous suits. To these ends, California courts strictly enforce the notice requirements and hold that defective notice cannot be cured retroactively, Judge Donato wrote.
“A plaintiff cannot sidestep these requirements by trying to use the UCL or CLRA to plead around a claim that would be barred under Proposition 65,” Judge Donato ruled.
The question before the Court, is whether the claims asserted in Harris’s initial complaint “are entirely derivative of an unspoken Proposition 65 violation, or whether they assert claims independent of Proposition 65,” Judge Donato wrote.
Harris claimed the complaint alleges nondisclosure and failure to warn of substances not regulated by Proposition 65, and that his initial complaint alleges a failure to disclose formaldehyde and acetaldehyde independent of a failure to warn under Proposition 65.
Judge Donato found these arguments unconvincing, noting that Harris made no adequate allegation about any substances other than formaldehyde or acetaldehyde. He determined that a single passing reference to “high concentrations of ultrafine particles” was too cursory to state a plausible independent claim under the UCL and CLRA for fraudulent omissions or failure to disclose.
Judge Donato dismissed Harris’ amended complaint with leave to amend so Harris may allege facts sufficient to state a claim independent of Proposition 65. The Court was advised by R.J. Reynolds that the FDA issued a Final Rule on e-tobacco products effective August 8, 2016. FDA Tobacco Products Final Rule, 81 Fed. Reg. 28,974 (May 10, 2016)
Jerrod Harris of Dana Point California made his debut as a Proposition 65 citizen enforcer with this case.
The Case cited by this article is: Harris v. R.J. Reynolds Vapor Company, Case No. 15-cv-04075-JD, (N.D. Cal. Sep. 30, 2016).
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