PROP 65 ETS 98
dusambig from main 3 26
this is tobacco ets 2ndhand smoke 1998
vs later one on chemicals/glyphosate
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For nearly a decade, CAG led a campaign to eliminate secondhand smoke exposure.In California’s 1998 prohibition of smoking in the workplace, hotels received a specific exemption. We prosecuted over 60 hospitality entities for exposing their employees and the public to excessive amounts of secondhand tobacco smoke without providing adequate warnings pursuant to Proposition 65. According to the Surgeon General, secondhand smoke causes about 3,000 lung cancer deaths annually, and an estimated 62,000 deaths from coronary heart disease annually in the United States. By offering to forego any financial settlement, including a claim for attorneys’ fees, we encouraged over 100 hotels to become completely smoke-free establishments. Our efforts also resulted in a reduction of the number of smoking rooms in hundreds of hotels.
CAG’s prosecution of the hospitality industry was met with extreme resistance by the California Hotel & Lodging Association. A hotel defense attorney even tried to undermine CAG’s effort to reduce the incidence of secondhand smoke exposure by forming his own, for-profit organization and filing a copycat case agains the hotels. This copycat case was purportedly in the public interest. However, it sought minimal penalties and no reduction of exposure. When the CHLA colluded to settle the case with such nominal penalties, the California Attorney General joined CAG in an appeal to stop the collusion and dismantle the settlement. We won a victory on behalf of the public in Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America, 141 Cal. App. 4th 46, which changed the law to ensure that settlement of citizen enforcement actions are just and serve the public interest.
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Proposition 65, the “The Safe Drinking Water and Toxic Enforcement Act of 1986″, is a California law passed by the voters to protect the public from toxic substances that cause cancer and reproductive toxicity.
The law does this in two ways: 1) Proposition 65 prohibits businesses from knowingly discharging listed substances into drinking water sources, or onto land where the substances can pass into drinking water sources; 2) Proposition 65 prohibits businesses from knowingly exposing individuals to listed substances without providing a clear and reasonable warning. The type of warnings that may be required include Occupational, Environmental, and Consumer Product.
Consumer Advocacy Group, Inc. (CAG) is one of the most prolific citizen enforcers of Proposition 65. CAG has achieved tremendous benefits to the public in this area, partly because CAG seeks to negotiate settlements with alleged violators which include language which requires the alleged violators to reformulate their products in order to reduce or eliminate exposures to dangerous chemicals, and/or to require the alleged violators to otherwise change their business practices for the benefit of the public. Under Proposition 65, product reformulation can only be achieved as terms of a settlement.
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Snatching Victory from the Ashes
Tobacco front groups date back at least to the 1950s when Hill & Knowlton formed the Tobacco Institute Research Committee. (See article on page 10.) But the latest front group, the National Smokers Alliance, is more ambitious and better-funded than any previous grassroots campaign.
Burson-Marsteller runs the NSA with money from the Philip Morris Company. In recent months, as the FDA and some politicians have increased their efforts to regulate smoking, the NSA has responded with a nationwide mobilization that it claims is bringing thousands of smokers into its ranks each week.
Burson-Marsteller's state-of-the-art campaign utilizes full-page newspaper ads, direct telemarketing, paid canvassers, free 800 numbers, newsletters and letters to send to federal agencies. B-M is targeting the fifty million Americans who smoke. Its goal is to rile-up and mobilize a committed cadre of hundreds of thousands, better yet millions, to be foot soldiers in a grassroots army directed by Philip Morris's political operatives at Burson-Marsteller.
The "National Smoker's Alliance" (NSA) is a sophisticated, hi-tech campaign that organizes tobacco's victims to protect tobacco's profits.
In recent years California has been the front line of the tobacco wars and the state where the industry has suffered its worst setbacks. In 1988 the cigarette companies spent more than $20 million in a failed effort to defeat a major anti-smoking initiative. Since then health activists have succeeded in passing hundreds of local smoking bans. As a result, California has seen a 30% decrease in cigarette consumption, the most success of any state in reducing tobacco's deadly toll.
Philip Morris is fighting back through the NSA and a lesser-known California PR firm called the Dolphin Group. Funded with a reported half-million dollars from Philip Morris, Dolphin CEO Lee Stitzenberger set up a front group deceptively named "Californians for Statewide Smoking Restrictions." Using this name to fool petition signers, the group has gathered the hundreds of thousands of signatures needed to place a pro-smoking referendum before California voters this November. If passed, the referendum will do away with the hundreds of strong local anti-smoking ordinances in California.
Philip Morris knows that to win a pro-smoking initiative it has to produce troops, people who can willingly argue on its behalf. The NSA is a sophisticated, camouflaged campaign that organizes tobacco's victims to protect tobacco's profits.
In the past, the tobacco industry attempted, not too convincingly, to distance itself from the pro-smoking forces. The Tobacco Institute's Brennan Dawson told the Congressional Quarterly in 1990, "If we were to fund smokers' rights groups and bring them to Washington, wouldn't they then be viewed as an arm of the tobacco industry?"
Apparently desperate times require more obvious measures. Writing in the National Journal (5/28/94), journalist Peter Stone observed that NSA "is increasingly looking like a subsidiary of Burson-Marsteller," and noted that the PR firm "used its grassroots lobbying unit, the Advocacy Communications Team, to start building membership in the group last year."
Thomas Humber, a B-M vice president, is president and CEO of the NSA. Burson executives Kenneth Rietz and Pierre Salinger are active, as is Peter G. Kelly, a prominent Democrat with the firm of Black, Manafort, Stone & Kelly, which is owned by Burson-Marsteller.
Perhaps the tobacco industry is less concerned these days about fooling the news media, but it still appears important that the public not view the members of the NSA as pawns of Philip Morris or Burson Marsteller. Therefore, the names of the NSA's corporate funders and organizers are kept off of the group's materials.
How does the NSA recruit smoking's victims into becoming its advocates? Through a combination of high-tech direct marketing techniques and old fashioned "Feet in the Street" community organizing.
Like every good grassroots group, the National Smokers Alliance has a folksy but strident newsletter for its membership, called "The NSA Voice." According to its June 1994 issue, the NSA is paying hundreds of young activists, mostly unemployed college students, to sign up NSA members in bars and bowling alleys in Washington, Atlanta, Austin, Baltimore, Chicago, Cleveland, New York Seattle and other cities.
Eric Schippers, in charge of the membership drive, reports that "during only the first two months of activity, the Chicago campaign put 180 recruiters on the street and enlisted more than 40,000 members." He claims that such one-on-one organizing has helped swell the NSA ranks to more than 300,000 smokers.
Many NSA members are first recruited via full-page ads with 800 numbers that exhort puffers to stand up for their rights. Everyone who calls receives the NSA newsletter free for three months, along with 10 membership recruitment cards and stickers to place in stores and restaurants that say, "I am a smoker and have spent $___ in your establishment."
NSA members who sign up another ten people at $10 each can win a free NSA t-shirt. The committed and informed pro-smoking advocate can also call a free 800 number to order more sign-up cards and stickers, or get the latest marching orders regarding which bureaucrats or politicians need nudging from Marlboro's masses.
One recent NSA mailing, sent first class to hundreds of thousands of smokers, urged that letters be sent to the Occupational Safety and Health Administration (OSHA)to defeat new regulations that would "BAN SMOKING IN ANY SITE WHERE WORK IS CONDUCTED" (capitalization in the original).
B-M's propagandists have even coined a clever play on words that questions the patriotism of anti-smokers by calling them "anti Americans." NSA's newsletter advises, "If 'Anti' America is pushing a discriminatory smoking ban in your workplace, speak up," and "check the laws in your state with regard to the protection of individual rights."
Burson-Marsteller is more than happy to take the money that Philip Morris is pouring into its pro-smoking campaign, and Philip Morris has plenty of millions to spend. But this campaign is not really about swaying public opinion, a battle which the tobacco industry has already lost. Even half of the smokers say they favor stricter government regulation of their deadly habit.
The tobacco industry's goal is not to win good PR, but to avoid losing political and legal battles. This survivalist strategy has served the cigarette industry well for forty years.
The NSA provides Philip Morris with the shock troops they need to fight back at all levels. If the NSA and other deceptive PR practices can pull off a victory in California this November, more and more PR firms will likely imitate B-M's technique of organizing front groups on behalf of their corporate clients.
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not to be confused w/
Vol. 9, No. 2
Spring 2000
A Publication of the Environmental Law Section of the State Bar of California
Defense Strategies in Proposition 65 Litigation
By William W. Funderburk, Jr.* and Peter Muthig**
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Commonly called the "toxic tort of the 21st century," California's controversial Proposition 65 has spawned lawsuits against several thousand companies that distribute, store, manufacture or sell products containing Proposition 65 chemicals. Everything from urinal disks and antacids to carpet, appliances, exhaust, solvents and tobacco smoke have been the subject of Proposition 65 litigation.
This article focuses on some of the more common defenses to liability under the California Safe Drinking Water and Toxic Enforcement Act of 1986 ("Prop. 65").1 The article is divided into the following sections: (1) Background on Law and Political Landscape; (2) Code Violations and Penalties; and (3) Defense Strategies.
I. BACKGROUND ON LAW AND POLITICAL LANDSCAPE
Prop. 65 was passed by an overwhelming majority of California voters in November 1986 through the ballot initiative process. Under California law, ballot initiatives may not be changed, revoked or modified unless a two-thirds majority of the California Assembly and California State Senate pass, and the Governor signs, a bill promulgating such a change. Such a change is unlikely because of the popularity of environmentally protective measures among moderate politicians. In fact, although the California legislature has attempted to amend Prop. 65 numerous times since its passage into law, no amendments have passed.2
Despite the obvious legislative obstacles, the regulated community has mounted numerous constitutional challenges to Prop. 65, based on separation of powers and due process, since the law's inception. In all, at least twelve actions have facially challenged Prop. 65. None has succeeded. Recently, the California Court of Appeal affirmed that private citizen enforcement of Prop. 65 is constitutional.3
:{This long history of failed efforts to challenge the law confirms that the judiciary will give great deference to initiatives such as Prop. 65, which have been adopted by popular vote. It follows that the courts will likely uphold any reasonable legal , interpretations by Prop. 65 plaintiffs, especially if brought by the California Attorney General or other public prosecutors. The ultimate consequence is that enforcement actions, whether brought by a public official or a private citizen, are settled in the vast majority of cases.
Furthermore, companies are taking proactive and preemptive measures, in terms of their compliance with the law's mandates, auditing their facilities and attempting to shield themselves from attack. In any event, when defending a Prop. 65 case, the political landscape cannot be overlooked when mapping out defense strategies. In a high stakes game where "regulation by litigation" is the rule, discounting a prosecutor's political motivations can be fatal because prosecutorial action, as well as inaction, shapes the contours of how Prop 65 is interpreted.}:
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