Failed to Warn Consumers of Cancer Risk : Supermarkets, Tobacco Firms Sued Under Prop. 65

In the state’s first action to enforce Proposition 65, Atty. Gen. John K. Van de Kamp filed suit Friday against eight supermarket chains and 25 tobacco manufacturers charging that they failed to warn consumers of the risk of cancer from hundreds of tobacco products.

Van de Kamp accused many of the stores and tobacco companies of engaging in “a deliberate attempt to circumvent the requirements of Proposition 65” by setting up a toll-free hot line that provides inadequate warnings about toxic chemicals.

“This sort of casual disregard for the law cannot be tolerated,” the attorney general said after the suit was filed in San Francisco Superior Court.

Already, the threat of Van de Kamp’s lawsuit had prompted some retailers to begin improving their warning systems for all the items in their stores, not just the tobacco products listed in the suit.

Safeway Stores Inc. and the Vons Companies Inc., for example, have directed the manufacturers of all their products to identify any items that contain toxic chemicals and then put warning labels on them.

Proposition 65, which was overwhelmingly approved by the voters in 1986, requires businesses to provide “clear and reasonable” warnings to members of the public who are exposed to chemicals that are known to cause cancer or birth defects.

A coalition of four environmental groups served notice two months ago that they intended to file a lawsuit against the stores and manufacturers seeking $1.3 billion in fines for violating the warning requirement. To prove their point, they singled out cigars, pipe tobacco and loose-leaf tobacco, which have a known cancer risk but, unlike cigarettes, do not carry federally required warnings.

The environmentalists had hoped that Van de Kamp, as the state’s top law enforcement officer, would step in and take over the case--a procedure that is spelled out in the initiative.

“We’re very pleased,” said David Roe, an attorney with the Environmental Defense Fund and a principal author of the initiative. “This is exactly the way the law is supposed to work.”

Van de Kamp said his primary goal is to force the supermarkets and tobacco manufacturers to comply with the law. Proposition 65 provides for penalties reaching “into the stratosphere,” he said, with maximum fines of $2,500 per day per violation. But the attorney general indicated that it is not his intention to seek huge penalties.

“This is not a punitive exercise,” he said. “People need to know Proposition 65 is not going to sit there gathering dust.”

Although the suit focuses on tobacco products, supporters of Proposition 65 hope that it will induce manufacturers of a broad range of products to provide specific warnings when needed.

‘800-BALONEY’

Roe said it is likely only a handful of items contain hazardous amounts of such chemicals. But he cited the hot line service for supermarket customers as an example of how manufacturers have attempted to conceal the identity of potentially hazardous products.

Branded “800-BALONEY” by its critics, the hot line provides warnings only to consumers who call the toll free number and identify a product by its exact brand name. An operator in Omaha will then play one of two brief, taped messages saying whether or not the item contains chemicals covered by Proposition 65.

So far, according to Roe, the hot line has received 17,000 calls since it was set up in February.

Vons, the largest supermarket chain in the state, began notifying its suppliers last week that it would no longer accept listing of a product with the hot line as an adequate warning.

“Because of lack of participation by manufacturers and brokers in the 800-number system and because of challenges to the 800-number concept, it is Vons’ position that manufacturers must certify that their products do not require labeling or commence labeling as soon as possible,” wrote Stuart A. Rosenthal, Vons executive vice president, in a letter to manufacturers and suppliers.

Vons also sent a separate letter to the manufacturers of cigars, pipe tobacco and loose-leaf tobacco products notifying them that they must agree by Monday to put warning labels on their merchandise or face the removal of those items from the stores’ shelves.

Similarly, Safeway sent a notice to suppliers saying its stores would not accept delivery of products after Oct. 17 that are not labeled to provide any required warnings. In the meantime, Safeway will use shelf signs to notify shoppers about the danger of cancer or birth defects posed by any products it sells, according to the notice.