Prop. 65 Warnings on Lead Don’t Include Faucets, Court Rules

Brass faucets that contain lead are not prohibited by a state law that forbids discharge of toxic substances into drinking water, a state appeals court ruled.

Proposition 65, a 1986 ballot initiative, banned the release of chemicals that cause cancer or birth defects into “any source of drinking water.” In a 2-1 ruling made public Tuesday, the 1st District Court of Appeal said faucets are not sources of drinking water.

The law covers “lakes, rivers, streams, ground waters, and man-made storage facilities and aqueducts--the origins of drinking water,” the opinion by Justice Michael Phelan said. “Brass plumbing fixtures are simply not the focus of the proposition.”

In dissent, Presiding Justice J. Anthony Kline said the ruling “prevents the use of that initiative to protect Californians against lead poisoning . . . the single greatest source of toxic contamination of drinking water that now exists in this nation.”

Nearly all household faucets in the state are made of brass that contains some percentage of lead alloy. If the court had ruled that the discharge of lead from faucets was banned by Proposition 65, faucets containing any significant amount would have been banned in the state, said Deputy Atty. Gen. Edward Weil.

“We probably would have tried to work out some agreement that would phase in lead-free faucets over some period of time,” said Weil, who argued that faucets were covered by the law. “They’d start making faucets with little or no lead, as some already do.”

He said the state has not decided whether to appeal but is hoping to attack the problem from a different direction, by expanding the warnings required by Proposition 65 on lead-bearing faucets.

Faucet packages now contain warnings that the products contain a potentially hazardous substance, under a court order accepted by the industry. The state wants warnings attached to the faucets and is scheduled to go to trial in January.

Patrick C. Marshall, lawyer for faucet manufacturer Moen, said the ruling “gives effect to what the voters thought they were voting for . . . Proposition 65’s protections for lakes, rivers and streams.”