[co-author Hanna Barker Mullin]

A California state appeals court affirmed a bong maker’s win in a suit alleging it violated California’s Proposition 65 (Prop. 65) by failing to warn consumers that its products expose them to marijuana smoke that could cause cancer or reproductive harm.

Prop. 65 is a California initiative approved by voters in 1986 and enacted into law as the Safe Drinking Water and Toxic Enforcement Act that same year. The law prohibits knowingly and intentionally causing exposure to substances, including cannabis smoke and delta-9-tetrahydrocannabinol (THC), that are known to the state to cause cancer or reproductive harm, without first providing a clear and reasonable warning. California maintains a list of substances that trigger Prop. 65 warnings. To comply with Prop. 65, businesses must provide consumers with a compliant warning, unless they can ensure that their product does not expose consumers to a listed substance at levels that may cause cancer or reproductive harm.

Plaintiff-appellant Environmental Health Advocates, Inc. (EHA) filed a private enforcement action against Sream, Inc. (Sream) on November 12, 2020, alleging Sream violated Prop. 65 when Sream failed to provide a warning that their water pipe products—more commonly known as bongs—exposed consumers to marijuana smoke. EHA’s enforcement action sought “injunctive relief against Sream, from manufacturing, importing, selling, and/or distributing the products without a clear and reasonable warning.”

Sream’s motion for judgment on the pleadings was granted, finding that Sream’s water pipe products did not themselves contain marijuana smoke and did not necessarily require marijuana to be used, thus were not required to provide a Prop. 65 warning for marijuana smoke.

On appeal, EHA challenged the trial court ruling, arguing, among other things, that the trial court erred in applying the wrong standard to determine whether a Prop. 65 warning was required for Sream’s products. The appellate court found that while Sream’s water pipe products could potentially expose consumers to marijuana smoke, if consumers chose to use it for that purpose, requiring a warning for possible contact dependent on how consumers may or may not choose to use the product would create confusion.

The appellate court further held that the trial court’s decision was in line with previous positions regarding the removal of Prop. 65 warnings on “passive vessels” taken by the California attorney general on similar products that might be used to consume harmful substances, but do not necessarily contain a substance on the Prop. 65 list.

The court’s ruling will likely have direct implications for California businesses manufacturing and selling paraphernalia and ancillary products that might be used with cannabis.

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