Proposition 65 Advisory

January 20, 2000

Proposition 65 Advisory 00-II

Court Extinguishes Proposition 65 Claims
Against Tobacco Companies for Second-Hand Smoke

Refusing to ignore Proposition 65's requirement that a violation consists of a "knowing and intentional" unwarned exposure to a listed chemical, the San Diego Superior Court rejected claims by the Cities of Los Angeles and San Jose and by a private party that the major tobacco companies violate Proposition 65 by failing to warn non-consumers of cigarettes that they are exposed to "second-hand smoke." Judicial Council Coordinated Proceeding, Tobacco Case #JCCP-4042 (Superior Court for the County of San Diego), January 5, 2000.

In an analysis that can be applied to the manufacture of a wide range of consumer products, the court found that a duty to warn persons other than the purchaser of a consumer product cannot be imposed under Proposition 65. The Court reasoned that "as used in the conjunctive, a 'knowing and intentional exposure' [within the meaning of Cal. Health & Safety Code Section 25249.6] must be said to require more than a mere knowledge or foreseeability on the part of a consumer product manufacturer that an exposure may at some unknown time, place and circumstance be occasioned by the ultimate consumer's customary use of the product." Id. (emphasis in original).

Ruling on defendants' motions for summary adjudication, the San Diego court found persuasive the reasoning of the San Francisco Superior Court in the "Diesel Cases." Borrowing from that case, the San Diego court held that a "knowing and intentional exposure" requires "the exercise of control over the usage of or release from the consumer product it manufactures and/or distributes that ostensibly occasions the exposure." Id. (emphasis added). In the Diesel Cases, plaintiff bounty hunters had argued that manufacturers of diesel-powered cars and trucks were liable for failure to warn those exposed to diesel exhaust in the urban environment.

The court in the tobacco cases, however, let stand plaintiffs' claims under the Unfair Competition Law, but only to the extent that they are predicated not on violations of Proposition 65, but rather on allegations that the cigarette manufacturers engaged in fraudulent business practices which deceived the general public as to the dangers of second-hand smoke.

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