Retailers, Tobacco Firms Sued Over Prop. 65 Warning

A coalition of environmental groups filed legal action Tuesday, seeking $1.3 billion in penalties from eight supermarket chains and 28 tobacco companies for allegedly violating the warning requirements of Proposition 65.

The action, filed with the attorney general and local prosecutors throughout the state, is the first major enforcement effort under the anti-toxics initiative, which requires businesses to provide warnings whenever they expose the public to chemicals known to cause cancer or birth defects.

“Business has to take the voters of California seriously,” said David Roe, an attorney for the Environmental Defense Fund and a principal author of the initiative. “Proposition 65 is in effect and it will be enforced.”

Filed by the Sierra Club, the Environmental Defense Fund, the Natural Resources Defense Council and Campaign California, the enforcement action is a direct challenge to the controversial toll-free hot line established by manufacturers and retailers to provide warnings under Proposition 65.

The complaint was filed under a provision in Proposition 65 that allows any citizen to initiate an enforcement action and receive 25% of any penalties that are assessed--a section of the law commonly known as the “bounty hunter” provision. State and local prosecutors have 60 days to intervene and take over the enforcement action, in which case the prosecutor’s office would receive the 25% share of any fines that are levied.

If the prosecutors decline to take the matter to court, the citizen can.

The environmental groups charge that the supermarket chains and tobacco producers have not provided clear warnings of the cancer risk posed by smoking cigars, pipe tobacco and loose-leaf cigarette tobacco. Unlike cigarettes, there is no federally required warning for these products.

Atty. Gen. John K. Van de Kamp, who has 60 days to decide whether to take over the enforcement action, issued a statement calling it “a very significant matter” and saying he will give it “full and close attention.”

The complaint identified 225 tobacco products that allegedly are being sold in California without proper warning, including items manufactured by R.J. Reynolds, the American Tobacco Co. and Brown & Williamson. Warnings are provided under the toll-free hot line for most, but not all, of these products, according to environmentalists.

The toll-free system, based in Omaha, provides a tape-recorded warning to consumers who call and ask for information about a specific product by its precise brand name. Critics have branded the hot line “800-BALONEY” and charge that the information it provides is useless for consumers.

“The real worth of this (enforcement action) is to clear away this underbrush of bogus warnings--warnings that don’t tell you anything,” Roe said. The environmentalists contend that warnings should be placed on the products themselves or the shelf where they are displayed.

Norman Sharp, a spokesman for the Cigar Assn. and the Pipe Tobacco Council, declined to discuss the action until he had seen a copy of it.

But Leslie D. Howe, a lobbyist for the California Retailers Assn., said his members had relied on the toll-free hot line to provide warnings.

“The real question is, How do you define proper warning?” Howe said. “In most cases, as far as I know, the 800 number is being used.”

Among the retail chains named in the action were Safeway, Vons, Ralphs, Lucky and Thrifty Drug.

Van de Kamp’s office has already begun investigating the way in which businesses are complying with Proposition 65, including the toll-free hot line. The attorney general’s office has subpoenaed information from more than 40 businesses to monitor compliance with the law.

“We intend to vigorously enforce Proposition 65 to ensure that California consumers are given proper warning when products they use contain chemicals that could cause cancer or birth defects,” Van de Kamp said.

The warning requirements of Proposition 65 are now in effect for 60 chemicals known to cause cancer or birth defects. Among them are 10 substances found in tobacco smoke, including benzene, vinyl chloride and benzo(a)pyrene.

Under Proposition 65, businesses that do not provide a “clear and reasonable” warning can be liable for fines of up to $2,500 a day per violation.