Free Toxics Hot Line on Grocery Items Not Effective, Judge Rules

A controversial toll-free hot line set up by the grocery industry in response to Proposition 65 does not provide the “clear and reasonable warning” required by the anti-toxics initiative, a Sacramento Superior Court judge ruled Tuesday.

Judge Eugene T. Gualco, resolving a dispute that dated back to early 1988, found that the toll-free system does not adequately warn consumers about specific products that could cause cancer or reproductive harm.

“The system is not reasonably calculated . . . to convey the warning message to consumers prior to exposure,” Gualco said in his 16-page opinion. “Moreover, the system has not proven effective in practice in conveying the warning message prior to exposure.”

Environmentalists, who had branded the system “800-BALONEY,” and Atty. Gen. John K. Van de Kamp, whose office handled the case, praised the judge’s decision and expressed the hope that manufacturers would begin providing proper warnings under the law. Such warnings, they said, could include labels on the products themselves, shelf signs or some other form of warning prior to purchase.

“We have insisted all along that food shoppers are entitled by law to the health and safety information they need before they buy,” Van de Kamp said. “The 800 number does not do the job. Shoppers should not have to find a telephone just to learn whether products are safe.”

However, the Ingredient Communication Council, which operates the hot line, said it was disappointed by the decision and “expects to vigorously appeal” the ruling. The industry group said in a statement that the hot line “meets or exceeds the warning requirements of Proposition 65.”

The hot-line case came before Gualco after the Ingredient Communication Council sued Van de Kamp in the hope of obtaining a ruling that the toll-free system met the requirements of the law. Instead, the judge ordered the hot line’s sponsors to notify manufacturers that the toll-free system does not comply with Proposition 65.

Although grocery stores throughout the state have relied on the toll-free warning system, the judge’s ruling will apply primarily to non-grocery items, such as cleansers. That is because the state Health and Welfare Agency has issued a temporary exemption from the warning requirements for all foods, drugs and cosmetics that meet the standards of the federal Food and Drug Administration.

Under the initiative approved by voters in 1986, businesses must provide a “clear and reasonable” warning if they expose the public to substances known to cause cancer or reproductive harm. Firms that break the law can be fined as much as $2,500 a day for each violation.

Enforcement Actions

The Tuesday ruling could lead to the filing of costly enforcement actions against manufacturers who were required to provide a warning on specific products but relied instead on the toll-free system.

“This leaves a handful of products in an extremely dangerous legal situation,” said David Roe, an attorney with the Environmental Defense Fund and a principal author of Proposition 65. “They have been giving inadequate warnings for the better part of two years. At $2,500 a day per sale, their liability could be huge.”

Beginning in February, 1988, stores throughout the state posted a toll-free number advising customers to call if they wanted to know whether any of the 15,000 products sold in supermarkets contained a Proposition 65 warning. In order to obtain the warning information from telephone operators based in Omaha, Neb., callers must identify each product by brand name.

In the first year of operation, hot line sponsors said the system received 25,000 calls.

Few Products

When the hot line was set up, backers of Proposition 65 accused the grocery manufacturers of attempting to evade the law’s warning requirements, instead of providing warnings on the few products that could cause cancer or birth defects.

“This was a sham from the beginning and a court has finally said so,” Roe said. “What’s next is for industry to stop playing hide-the-ball and give Californians the few real warnings that they need.”