February 2, 2023

Volume XIII, Number 33


February 02, 2023

Subscribe to Latest Legal News and Analysis

February 01, 2023

Subscribe to Latest Legal News and Analysis

January 31, 2023

Subscribe to Latest Legal News and Analysis

January 30, 2023

Subscribe to Latest Legal News and Analysis

Up In Smoke – CA Court of Appeal Dismisses Prop 65 Case Against Water Pipe Manufacturer Narrowly Construing The Term “Expose”

California Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Safety Code § 25249.5 et seq.) (“Prop 65”) is a California law that prohibits any person in the course of doing business from “knowingly and intentionally expos[ing]” individuals to listed carcinogens and reproductive toxins without adequate warning. Recently, in Environmental Health Advocates, Inc. v. Sream, Inc., 83 Cal. App. 5th 721 (2022), the First District Court of Appeal had the opportunity to interpret the word “expose” as used in Health & Safety Code § 25249.6, concluding that possible indirect contact with a listed Prop 65 chemical, depending on how a consumer chooses to use a product, is insufficient to constitute a cause of action under Prop 65. 


In 2020, Prop 65 private enforcer Environmental Health Advocates filed a complaint against water pipe manufacturer Sream, Inc. alleging that Sream failed to provide a warning that its water pipe products exposed consumers to cannabis smoke in violation of Prop 65. Unlike many Prop 65 cases, EHA did not allege that the water pipe itself contained a Prop 65 chemical. Rather than alleging direct contact, EHA alleged that individuals may be exposed to cannabis smoke through “reasonably foreseeable use” of Sream’s water pipe products. EHA did not allege that the water pipes can only be used with cannabis or require cannabis to function. The trial court granted Sream’s motion for judgment on the pleadings, finding that such allegations are insufficient to satisfy the exposure requirement of Prop 65, and dismissed the action with prejudice. On review, the First District Court of Appeal affirmed the trial court’s judgment.

The Court of Appeal’s Analysis

The court’s analysis differentiated between acts that directly bring consumers into contact with a listed Prop 65 chemical vs. possible indirect contact, holding that:

  • Prop 65 is about protection from harmful chemicals and the ability to make informed choices. The court interpreted the term “expose” “to require a warning for any act that directly brings a consumer into contact with a listed chemical[,]” which allows consumers to make such informed choices.

  • “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. . . . Such confusion does not advance the purpose of Proposition 65.”

  • The remedial nature and purpose of Prop 65 would be “stymied by an overly broad interpretation of the statute not supported by its language or governing regulations.”

  • A “reasonably foreseeable use” standard does not apply.

It is too soon to know exactly how this will affect Prop 65 Notices and lawsuits going forward, but in light of the significant number of Notices that have alleged that a use of a product—as opposed to the only possible use of the product—can cause exposure, it will definitely have a significant impact.

View the Sheppard Mullin Prop 65 page for more information.

Copyright © 2023, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XII, Number 312

About this Author

Whitney Jones Roy  Los Angeles Litigator at Sheppard Mullin Law Firm

Ms. Roy specializes in business litigation and complex environmental litigation. Her experience includes representing clients in a variety of business disputes and against claims of fraud, breach of fiduciary duties, breach of contract, unfair business practices, negligence, nuisance and trespass. Ms. Roy has also developed a specialty in litigation relating to products liability, Proposition 65, the Clean Air Act, and CERCLA. She has been involved in insurance litigation and defending class action lawsuits. Ms. Roy's cases have related to a broad spectrum of industries...

Jennifer E. Pennington Associate Sheppard, Mullin, Richter & Hampton LLP

Jennifer Pennington is an associate in the Business Trial Practice Group in the firm's Los Angeles office. She is a member of the firm’s Women Lawyers Group and is actively involved in the firm’s Pro Bono efforts.

Areas of Practice

Jennifer represents clients in complex, high-exposure commercial litigation matters in both state and federal court. She has experience with all aspects of civil procedure, including filing and responding to complaints, conducting discovery, and motion practice.