Proposition 65 Advisory

A Proposition 65 "bounty-hunter" plaintiff known as Consumer Cause, Inc. has issued Notices of Intent to Sue against manufacturers and distributors of seventy-seven medical devices. The Notices are unusual in their breadth and lack of specificity, and for the unabashed manner in which Consumer Cause solicits the recipients to provide information about their products and settle to avoid threatened litigation.

California's Safe Drinking Water and Toxics Enforcement Act of 1986 ("Proposition 65") prohibits any person "in the course of doing business" from exposing any individual in California to a chemical "known to the State" to cause cancer or reproductive toxicity without first providing a "clear and reasonable" warning. Cal. Health & Safety Code § 25249.6. Violations are punishable by civil penalties of up to $2500 per day. The Act authorizes private party "bounty hunters" to enforce the law by civil lawsuits, initiated following sixty days' written notice to the Attorney General and other public prosecutors, and to retain twenty-five per cent of any civil penalty collected. A plaintiff who brings about a result "in the public interest" also may recover its attorneys fees and costs, under Cal. Civ. Proc. Code § 1021.5.

Consumer Cause is a prolific bounty-hunter plaintiff, having filed over a hundred Notices of Intent to Sue regarding a wide range of consumer products. Consumer Cause also has brought suit against most of the major petroleum refiners and distributors doing business in California, alleging that Proposition 65 chemicals in gasoline and other petroleum products have been discharged into drinking water, violating another provision of Proposition 65. See Cal. Health & Safety Code § 25249.5.

The medical devices identified in these Notices range from artificial eyes, hearts and kidneys to implantable teeth, joint replacements, pacemakers and sutures. The only common characteristic is that all are implanted into the human body. The Notices claim that the use of these devices result in consumer and environmental exposures to fifteen chemicals known to the State to cause cancer and seven chemicals known to the State to cause reproductive toxicity. The Notices include an "Invitation to Confer," in which counsel explains what Consumer Cause "seeks to gain" by these Notices. Their objectives include creating a "channel of communication" to resolve the matter "without litigation," a "small penalty . . . or contribution," and an additional payment to "compensate" the attorneys. The Notices claim that the recipient could be liable for up to $912,500 per year, for any "one person" treated with a noticed device.

We will be providing further information regarding these Notices in the coming weeks. In the meantime, we discourage any company that has received one of these Notices from contacting Consumer Cause or its attorneys prior to consulting counsel. If you need further information, or if you would like a copy of a Consumer Cause Notice, please contact one of the attorneys identified below.

McKenna & Cuneo, L.L.P., distributes its Advisories to clients and friends of the firm free of charge. If you would like to request additions (or deletions) to our distribution list, please call Nina MacLeay at 213-243-6063.

For more information, please contact: