Co-written by Rebecca Ceniceros
Businesses whose products contain Proposition 65-listed reproductive toxins have a duty to warn consumers unless the exposure is 1/1000 of the no observable effect level.
In Consumer Cause v. SmileCare, the defendant sought to establish that the exposure was below the level requiring a warning through the plaintiff’s discovery responses. The plaintiff admitted it had no evidence that the exposure was at a level requiring a warning. Despite this admission, the court held that the burden of proving the exposure level was on the defendant, who had to meet the burden with credible, scientific data and analysis.
The majority opinion elicited a spirited dissent which protested that, given the expense of the scientific inquiry required, most defendants will settle lawsuits even if they have no merit. These coerced settlements are, in the dissent’s view, "judicial extortion." In the dissent’s opinion, Proposition 65 plaintiffs should, at a bare minimum, have some evidence showing a reasonable belief that a warning is required.
Notwithstanding the dissent, Proposition 65 defendants continue to bear a heavy burden of proof.
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