Citizens Sue Firms for Undisclosed Chemical Use

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In a state known for its government's dedication to environmental policy, a group of equally dedicated citizens and private practices - dubbed "bounty hunters" by some - have taken it upon themselves to warn Californians about harmful chemicals.

Recently, five companies, including Anchor Blue, Zappos.com and Smart & Final, have been sued in Alameda County Superior Court by such citizens, who claim the businesses violated California law by failing to warn consumers about carcinogenic or birth-complicating substances in their products.

Anthony Held, a California citizen and engineer, filed a claim against Zappos on Feb. 8 because a pair of sandals the website sells allegedly contains dangerous levels of DEHP, determined by the state to be a carcinogen.

Another figure acting on the public's behalf, John Moore, filed suits on Feb. 15 alleging that four companies' products contain DEHP or DBP, a chemical suspected to cause reproductive toxicity and endocrine disorders.

Both men are represented by The Chanler Group, a law firm with offices in Berkeley that specializes in claims regarding California's Proposition 65.

Under the proposition, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, anyone acting in the public interest can send letters announcing that he or she might sue businesses who do not provide "clear and reasonable warning" of their products' toxicity in accordance with state health and safety code.

All chemicals known to cause health problems are compiled in a list by the state's Office of Environmental Health Hazard Assessment.

For some, the threat of about 800 different chemicals to California's citizens is motivation enough to uphold Prop. 65.

"Our motivation is public health," said Charles Margulis, communications director for Oakland's nonprofit Center for Environmental Health. "When the market changes in California, it changes everywhere, and when we have a Prop. 65 success story, we effect change for kids and families all around the world."

While 75 percent of each settlement's civil penalties are awarded to the state, the other 25 percent is awarded to the plaintiff. A series of reviews and the extent of the process's red tape keeps the system from being abused in most cases, according to Malcolm Weiss of Los Angeles firm Hunton & Williams.

For citizens such as Held, who negotiated 88 settlements totaling $2.7 million in 2009 alone, $477,700 of which were split between Held and the state, according to state documents, this represents a significant income.

Both Held and Moore could not be reached for comment.

As a result of all 2009 settlements in the state, law agencies representing 16 different clients charged $9 million in legal fees.

"There are a lot of critics of Prop. 65 who say that it's a way for lawyers to file spurious lawsuits to get money out of companies for issues that don't exist," Margulis said.

By contrast, the state received 75 percent of $1.68 million - or about $1.26 million for all 321 cases.

The relative ease of filing Prop. 65 suits and the prevalence of chemical compounds in everyday life have resulted in controversy surrounding the measure, said Weiss.

"If you look at it from a high-level homogeneous vantage point, if there isn't any harm being caused, just the extra cost of doing business is an attenuated harm," he said. "But it's a harm that gives California a bad name among business entities."

Tags: ALAMEDA COUNTY SUPERIOR COURT, ANTHONY HELD, JOHN MOORE, ZAPPOS, OFFICE OF ENVIRONMENTAL HEALTH HAZARD ASSESSMENT, SAFE DRINKING WATER AND TOXIC ENFORCEMENT ACT OF 1986, PROPOSITION 65


True Shields is the lead courts reporter. Contact him at [email protected]



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