Products liability and its application to marijuana businesses is a topic we’ve discussed at great length. In California, however, marijuana business owners have additional cause for concern: Proposition 65.
California’s Proposition 65, or the Safe Drinking Water and Toxic Enforcement Act of 1986, requires the State to publish a list of chemicals known to cause cancer, birth defects or other types of reproductive harm. The list includes approximately 800 chemicals. Proposition 65 requires businesses to provide their customers with notice of these chemicals when present in the products they purchase, in their homes or workplaces, or that are released into the environment. The intent is to allow consumers to make informed decisions with respect to chemical exposure.
Proposition 65 provides for both a public and private right of action. In general, the California Attorney General’s Office enforces Prop 65, but if certain criteria are met, an individual may also bring suit against a business for failure to properly warn. There are even California lawyers for whom bringing these lawsuits is a regular part of their business.
A private individual may bring a Prop 65 claim by filing a complaint more than 60 days after having “given notice of the alleged violation … to the Attorney General and the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator,” and, if after giving notice, none of the public enforcers has “commenced and is diligently prosecuting an action.” This 60 day notice must contain the following information:
- A copy of the Prop 65 statute
- A description of the violation
- The private enforcer
- The time period of the violation
- The listed chemical(s) involved
- The route of exposure (inhalation, ingestion or dermal contact)
Pursuant to a later amendment to the Act, the 60 day notice must also include a “certificate of merit.” The individual bringing the action must certify that they have “consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person executing the certificate believes there is a reasonable and meritorious case for the private action.” This sounds complicated, but it really isn’t – the bar for bringing an action to enforce Prop 65 is quite low.
So how does all of this affect marijuana business owners? Effective June 19, 2009, marijuana smoke was added to the Prop 65 list of chemicals known to cause cancer. The Carcinogen Identification Committee (CIC) of the Office of Environmental Health Hazard Assessment (OEHHA) “determined that marijuana smoke was clearly shown, through scientifically valid testing according to generally accepted principles, to cause cancer.” Check out the complete Prop 65 list here. As you can see, there is hardly a business owner in California who won’t find themselves subject to Prop 65 warning requirements at some point.
Several months ago, a citizen served the first five 60-day notices on medical marijuana dispensaries. The dispensaries targeted included the Venice Medical Center, Inc., True Connoisseur Collective, California Organic Treatment Center, Inc. Clean Green Caregivers Collective, and Care California Consultation, Inc. dba The Green Gorilla. The notices sought the following from the alleged violators:
- Recall products already sold;
- Reformulate all such products to eliminate the ability to smoke them; or
- Take appropriate measures to otherwise comply with Proposition 65; and
- Pay an appropriate civil penalty based on factors enumerated in California Health and Safety Code Section 25249.7(b).
These types of actions can be a huge burden to small business owners. Make sure you are aware of your obligations under Prop 65 and make sure that you are satisfying all of them. For more on products liability issues, check out the following: