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Prop 65

CORP PERSON?

CA 1998 secondhand smoke ntbcw/ Water 1986 (fought by monsanto roundup and agribiz)

http://legacy.library.ucsf.edu/cgi/getdoc?tid=iym90c00&fmt=pdf&ref=results

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2 26 GLYPHOSATE PEST LAWSUIT LIABILITY SHIELD FED PRE-EMPT LABEL LAW ALEC? BAYER MAHA RFK2 FAIL

For more information on pesticides from the National Agricultural Law Center, click here.

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Oct 10, 2023 — The bill is supported by state and national agricultural organizations. However, environmental advocates are certain to battle the...

Steptoe

California Consumer Chemicals Law Blog | October 10, 2023

The Impact of the Agricultural Labeling Uniformity Act (H.R. 4288) on Proposition 65

The U.S. House of Representative’s recent introduction of a bipartisan pesticide labeling bill would, if passed, preempt states from imposing different –or additional– pesticide labeling obligations than those approved by the U.S. Environmental Protection Agency (EPA) under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This effort, entitled the Agricultural Labeling Uniformity Act (H.R. 4288), would take aim at the ongoing consequence of states and local agencies requiring different labels for the same pesticide products, and the variable science underlying these obligations. The impact of these inconsistencies has been felt both by the agricultural industry faced with an onerous if not impossible compliance burden, as well as consumers who are left puzzled by contradictory warnings.

:{:{For companies doing business in California that are regularly under the threat of Proposition 65 (Prop 65) enforcement, the shift in labeling requirements would mean that only labels approved by EPA could appear on pesticide packaging. This immediately calls to mind pesticide products containing the popular herbicide, glyphosate, which is listed as a Prop 65 cancer causing chemical.}

: Among other things, Prop 65 requires that businesses provide warnings to consumers before purchase of a product that contains any one of over 900 chemicals identified by the state as capable of causing cancer or reproductive harm. Glyphosate was added to the Prop 65 list based on an International Agency for Research on Cancer finding that glyphosate is a “probable human carcinogen.” However, because EPA has a contradictory finding that there is insufficient evidence to show that glyphosate causes cancer, the bill would directly preempt a Prop 65 cancer warning for pesticide products containing glyphosate.}:

The validity and constitutionality of the Prop 65 warning for glyphosate has already been under judicial scrutiny for several years. In National Association of Wheat Growers v. Zeise, 309 F. Supp. 3d 842 (E.D. Cal. 2018), the U.S. Court for the Eastern District of California issued a permanent injunction blocking the enforcement of the Prop 65 cancer warnings for glyphosate, holding that requiring companies to label glyphosate-based products as a known carcinogen violates First Amendment rights by compelling “false, misleading, and highly controversial statements.” In coming to its ruling, the Court pointed to the debate over glyphosate’s carcinogenicity and EPA’s contradictory finding that there is insufficient or no evidence to support the claim that glyphosate causes cancer. This decision is currently on appeal before the U.S. Court of Appeals for the Ninth Circuit, and oral arguments were heard in April 2023.

Interestingly, even if the injunction were overturned on appeal, passage of H.R. 4288 would accomplish a similar end result of prohibiting Prop 65 enforcement actions for alleged failure to warn for glyphosate content in pesticide products. Certainly, the outcome of this legislation could shape the future of Prop 65 enforcement. If enacted it would, at the least, effectively knock glyphosate off the Prop 65 enforcement list. Its passage would also curb enforcement actions for other Prop 65 listed chemicals contained in pesticide products, where EPA has determined that those chemicals are not carcinogenic.

:{:{Whether the introduction or enactment of the bill will jumpstart a trend toward uniformity and sound science in the application of Prop 65 that reaches beyond pesticides is to be determined. The fact that the Ninth Circuit reinstated a temporary injunction against the filing or prosecution of new Prop 65 lawsuits related to acrylamide in food and beverage products bodes well for that prediction. Cal. Chamber of Comm. v. Becerra, 529 F. Supp. 3d 1099 (E.D. Cal. 2021), aff’d, 29 F.4th 468 (9th Cir. 2022), cert denied, ---U.S.----, ---S.Ct.----, ---L.Ed.2d----, 2023 WL 2959385 (Apr. 17, 2023).}:

The Becerra Court recognized that the scientific evidence fails to demonstrate that acrylamide causes cancer, and its listing as a carcinogen under Prop 65 is tenuous at best. If a permanent injunction is eventually issued, it may provide more momentum toward addressing areas of weakness and abuse in Prop 65 enforcement.}:

Not surprisingly, the bill’s desired effect of promoting consistency and uniformity through the application of sound science in pesticide labeling is supported by state and national agricultural organizations, who have long struggled to manage the obstacles presented by regulations such as California’s Prop 65. On the other hand, environmental advocates are certain to battle the legislation and ignite a contentious debate concerning the balance of authority between local, state and federal regulatory control. The bill is in the early stages of the legislative process and was referred to the relevant House Subcommittee on August 21, 2023. We will continue to track its progress and implications.

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Gov. LePage's pesticide bill mirrors ALEC's model - POLITICO Pro

May 9, 2017 — The model bill was drafted by ones of ALEC's task forces with corporate members like CropLife America, Dow AgroSciences and the Am...

POLITICO Pro

May 20, 2024 — The provision will block lawsuits like those successfully advanced against Bayer/Monsanto for adverse health effects, like cancer,

Beyond Pesticides

Jul 16, 2018 — Yet another bill has been introduced in Congress to remove accountability from Monsanto/Bayer for its glyphosate herbicide Roundup...

Beyond Pesticides

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Outrage mounts as Republicans in Congress move to protect ...}:

Sep 27, 2025 — ... glyphosate-based Roundup herbicide and other weed killers can affect its research and product development and other “important...

The Guardian

Jan 21, 2026 — by state trying to pull the wool over lawmakaker. eyes today Tennessee is in the crosshairs. that's why we're here at least five s...

IT‘s been seven years since Germany’s Bayerbought US agrochemical giant Monsanto, inheriting not only the company’s vast portfolio of seeds and pesticide products, but also more than 100,000 lawsuits alleging Monsanto’s popular Roundup herbicide causes cancer. Bayer, which has so far paid out billions of dollars in settlements and jury verdicts to cancer victims, has been working – so far in vain – to put an end to the litigation and to block any future such cases.

Now Bayer appears closer than ever to success, as many Republican congressional leaders push for measures that would effectively block lawsuits against pesticide makers around the country.

A groupfounded by Bayer called the Modern Ag Alliance is the face of the legislative push, advocating for liability shields they say are necessary to allow companies to continue to sell chemicals that farmers use to kill weeds and bugs in their fields.

“Without legislative action, a potential catastrophe is on the horizon that could result in many farmers going out of business and food prices rising even further,”the alliance, which represents more than 100 agricultural organizations, including farmers who grow wheat, corn, soybeans and other key food crops, warns on its website.

Weedkiller ingredient widely used in US can damage organs and gut bacteria, research shows}:

:{:{Read more}:

https://www.theguardian.com/environment/2025/jul/06/weedkiller-diquat-organ-damage-study)}:

The alliance has been lobbying for thepassage of state laws blocking such lawsuits. They’ve succeeded thus far in two states – Georgia and North Dakota – and continue to lobby for such laws in all 50 states.

But the immediate battleground is in the halls of Congress, where a provision tucked into a congressional appropriations bill is outraging consumer advocates, including those affiliated with the influential Make American Healthy Again (Maha) movement. Similar protective language for pesticide makers is expected to be included in the new farm bill as well.

“The audacity of elected officials voting for legislation to fully strip our legal rights away when injured by chemicals is stunning,” said Kelly Ryerson, a leading Maha advocate who has been lobbying lawmakers and her 84,000 social media followers to oppose pesticide company protections. “Especially in this age of Maha when an unprecedented number of Americans are rallying against toxins in food and the environment.”

‘Important investments’

Bayer has made it clear that changing laws in its favor is a priority. The company states on its website that without “legislative certainty”, lawsuits over its glyphosate-based Roundup herbicide and other weed killers can affect its research and product development and other “important investments”.

The Environmental Protection Agency (EPA) should be the ultimate arbiter of product safety and what warnings should be required on product labels, Bayer says. The company also says if the EPA approves a product label, consumers should not be able to sue companies for failing to warn of perceived risks.

In a statement to the Guardian, Bayer said federal legislation is “needed to ensure that states and courts do not take a position or action regarding product labels at odds with congressional intent, federal law and established scientific research and federal authority”.

Bayer has already removed glyphosate, classified as “probably” carcinogenic to humans by World Health Organization cancer experts, from consumer herbicide products. And the company has threatened to stop selling it to farmers if the litigation is not brought to an end.

The company disputes, however, that the appropriations bill will provide that certainty, saying in its statement that the language doesn’t prevent lawsuits and asserting it does is a “distortion of reality”.

The relevant section of the House version of the appropriations bill – section 453 – does not mention litigation or pesticide company liability. Section 453 simply says that no funds can be used to “issue or adopt any guidance or any policy, take any regulatory action, or approve any labeling or change to such labeling” inconsistent with the conclusion of an EPA human health assessment.

But critics say the language effectively would impede states and local governments from warning about risks of pesticides even in the face of new scientific findings about health harms if such warnings are not consistent with outdated EPA assessments. The EPA itself would not be able to update warnings without finalizing a new assessment, the critics say.

Due to the limits on warnings, consumers would find it nearly impossible to sue pesticide makers for failing to warn them of health risks if the EPA assessments do not support such warnings.

The language is “by design sneaky and complicated and hard to explain”, said Daniel Hinkle, senior state affairs counsel for the American Association for Justice, who has been lobbying against the action.

“Nobody thinks that a giant chemical company should be able to lie about the risks of using their product and get away with it. It’s just making sure that people understand that is what is at stake,” Hinkle said.

‘Very worried’

Representative Chellie Pingree, a Democrat from Maine who tried but failed to overturn the language in aJuly appropriations committee hearing, said she is “very worried” about the “outrageous” efforts to protect pesticide companies from litigation.

“We’re talking about chemicals here that are already prone to health risks,” Pingree said. “And the chemical industry is trying to keep that information from consumers … and then to have immunity from being responsible if you get cancer from being in the presence of these chemicals.”

The language is not currently included in the short-term government spending package being debated ahead of a looming government shutdown that would occur at the end of the month in the absence of continued spending authorization.

But it is expected to see support in both House and Senate appropriations bill versions once the short-term budget is resolved. The new farm bill is also expected to include language limiting or preventing pesticide injury lawsuits, with strong signals from Glenn Thompson, chair of the House committee on agriculture, favoring such protections.

Previously, Thompson has weighed in on the side of Bayer amid its ongoing efforts to get the supreme court to weigh in on federal “preemption” over pesticide regulation.

The involvement and influence of the Maha movement, made up of voters from both parties, is adding a bipartisan element to what otherwise might be a highly partisan fight.

Max Lugavere, a health journalist, author and podcaster who posted a photo of a Maha-related visit to the White House to his 1.1 million Instagram followers, said pushing lawmakers is important, but “awareness among everyday people is the first domino”.

Citing “growing evidence linking pesticides to health risks”, Lugavere said: “Stripping away legal recourse in these cases wouldn’t just be wrong, it would be [a] tragedy.”

For California lawyer Brent Wisner, who helped lead the early Roundup litigation against Bayer, the efforts by lawmakers to protect the company against future litigation is un-American and potentially unconstitutional.

“I don’t care what party you are in, if you get poisoned by a pesticide manufacturer you want to be able to sue. You need to be able to sue,” he said. “Bayer is paying millions of dollars to get these laws passed because it’s cheaper than it is to pay people they’ve given cancer to.”

*This story is co-published with the New Lede, a journalism project of the Environmental Working Group

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https://www.**salon**.com/2019/07/14/corporations-can-legally-put-carcinogens-in-our-food-without-warning-labels-heres-why/

Corporations can legally put carcinogens in our food without warning labels. Here's why

Cheerios has so much glyphosate in it, it should be labeled as toxic. Corporate free speech precedents prevent that

MATTHEW ROZSA

JULY 14, 2019

A recent study by the Environmental Working Group revealed something horrifying: Glyphosate, the active ingredient in the popular weedkiller Roundup, was present in 17 of the 21 oat-based cereal and snack products at levels considered unsafe for children. That includes six different brands of Cheerios, one of the most popular American cereals.

I've written before about the limits of corporate free speech when it comes to public safety, but on that occasion I discussed this insofar as it involved corporate-sponsored climate change denialism. Yet here we have something more tangible, more direct: The safe glyphosate limit for children is 160 parts per billion (ppb), yet Honey Nut Cheerios Medley Crunch has 833 parts per billion and regular Cheerios has 729 ppb. While the potential risks of glyphosate are fiercely debated, many scientists believe that it is linked to cancer.

So if there are unsafe levels of glyphosate in a cereal popular with children, why isn't this disclosed on the cereal boxes? The complicated answer has to do with a legal case that defined free speech as something that non-human persons, like corporations, have a "right" to, in a sense. That sounds absurd, perhaps, and probably not something the framers of the constitution intended. Indeed, the idea of "corporate constitutional rights" is a relatively new one, yet one that corporations' legal arms fight tooth and nail to preserve.

There are several activist groups working to amend the constitution to undo the notion of corporate personhood and make it so that this mind-bending and harmful interpretation of corporate free speech is no longer enshrined in law. Move to Amend — as in, the constitution — is one such group. Salon interviewed ...What does glyphosate do to weeds?

There are several activist groups working to amend the constitution to undo the notion of corporate personhood and make it so that this mind-bending and harmful interpretation of corporate free speech is no longer enshrined in law. Move to Amend — as in, the constitution — is one such group. Salon interviewed Kaitlin Sopoci-Belknap, the National Director of Move to Amend, to understand how this weird legal situation came to exist.

Glyphosate is a non-selective herbicide, meaning it will kill most plants, not just weeds. It prevents plants from making certain proteins that are needed for plant growth.

What do peer-reviewed studies indicate it does to human beings and animals if they ingest it?

The International Agency for Research on Cancer (IARC) has labeled glyphosate as “probably carcinogenic” and the California Office of Environmental Health Hazard Assessment categorized it as a “chemical known to the state to cause cancer.”

How did glyphosate wind up in foods like breakfast cereals?

According to the U.S. Geological Survey, 250 million pounds of glyphosate are sprayed on American crops each year. Glyphosate is primarily used on Roundup Ready corn and soybeans that are genetically modified to withstand the toxin. Glyphosate is also sprayed on other non-GMO crops, like wheat, oats, barley and beans, right before harvest.

What have Monsanto and other companies done to suppress knowledge of its effects (lobbying, suppressing science, etc.)?

Monsanto has waged a sophisticated PR campaign to bully scientists and undermine findings that glyphosate is cancerous. In addition Monsanto and agribusiness leaders protecting the company's interests have a revolving door relationship with many agencies that are supposed to be overseeing and regulating the corporation. Monsanto and agribusiness associations have also made significant political contributions to Congressmembers like former Rep Lamar Smith from Texas who chaired the House Science, Space, and Technology Committee where he used his platform to undermine the [International Agency for Research on Cancer] when their cancer findings came out, accusing the agency of using "cherry-picked" science when determining that glyphosate is “probably carcinogenic.” ...Monsanto has argued that California's Prop 65 labeling law is a violation of the company's First Amendment right not to speak.

What is the boundary separating corporate free speech between their responsibility to the public health? Have those boundaries shifted over the years?

The courts have expanded the ability of corporations to overturn labeling requirements on a number of occasions over the last 35 years. In 1986 the Supreme Court decided that the Pacific Gas and Electric Company in California was not required to allow a consumer advocacy group to use the extra space in their billing envelope, upholding the corporation's right not to speak and protecting the corporation's “freedom of mind.”

In 1996 the U.S. Second Circuit Court of Appeals overturned a Vermont law requiring the labeling of all products containing bovine growth hormone and ruled that the right not to speak inheres in political and commercial speech alike and extends to statements of fact as well as statements of opinion.

In Nike v. Kasky in 2003the Supreme Court heard arguments on whether purposeful untruths in advertising are protected political speech before sending the case back to a California courtwhere it was settled in Kasky’s favor, finding that the state laws requiring truth in advertising had been violated. The question of whether the First Amendment gives a corporation the right to speak lies remains unsettled.

Legally speaking, why are companies allowed to have poisons in our foods without warning the public of that fact?

The Supreme Court never had the authority to determine that corporations have any Constitutional rights, including First Amendment rights. By granting corporations these powers, meant to be the ultimate protections for people from government overreach, it in effect means that in many ways regulatory agencies have no authority over corporate actions — even when those actions are determined to cause public harm. In cases involving the First Amendment right not to speak it is even more insidious because it means that their so-called right not to warn the public about their toxic products trumps our right to know what's in our food.

The only solution to this problem is to pass an amendment to the US Constitution to make clear that only human beings have Constitutional rights, and that government absolutely has the right to regulate corporations like Monsanto, so that they can no longer use the Constitution as a shield against public oversight and protection. The We the People Amendment will do just that.

MATTHEW ROZSA

Matthew Rozsa is a breaking news writer for Salon. He holds an MA in History from Rutgers University-Newark and is ABD in his PhD program in History at Lehigh University. His work has appeared in Mic, Quartz and MSNBC.

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3/17

California is the first U.S. state to require Monsanto to label its blockbuster weed killer, Roundup, as a possible carcinogen, according to a ruling issued Friday by a California judge.

Fresno County Superior Court Judge Kristi Kapetan previously issued a tentative ruling on Jan. 27 in Monsanto Company v. Office of Environmental Health Hazard Assessment, et al.

Judge Kapetan formalized her ruling Friday against Monsanto, which will allow California to proceed with the process of listing glyphosate, the active ingredient in Roundup, as a chemical "known to the state to cause cancer" in accordance with the Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Proposition 65.

In January of 2016, Monsanto filed a lawsuit against the State of California Environmental Protection Agency's Office of Environmental Health Hazard Assessment (OEHHA) over the agency's notice of intent to list glyphosate as a Prop 65 chemical.

OEHHA issued the notice after the World Health Organization's International Agency for Research on Cancer (IARC) issued a report on glyphosate, which classified the chemical as a "probable human carcinogen." The IARC report compelled OEHHA to list glyphosate as a Prop 65 chemical and warn consumers about the possible danger associated with glyphosate exposure.

Why Did Monsanto Sue the State of California?

In 1986, California voters approved Proposition 65 to address concerns about exposure to toxic chemicals. Prop 65 requires California to publish a list of chemicals known to cause cancer, birth defects or other reproductive harm.

OEHHA is the administrator for the Proposition 65 program and determines in many cases whether chemicals or other substances meet the scientific and legal requirements to be placed on the Proposition 65 list. The agency uses a "Labor Code" listing mechanism, which directs the OEHHA to add chemicals or substances to the Prop 65 list of chemicals known to the state to cause cancer if they meet certain classifications by the IARC.

Monsanto's lawsuit against OEHHA argued that the statutory basis underlying the agency's action to list glyphosate as a Prop 65 chemical violates both the California and U.S. Constitutions. According to the complaint, listing glyphosate as chemical known to the state to cause cancer cedes regulatory authority to an "unelected, undemocratic, unaccountable, and foreign body" that isn't subject to oversight by California or the United States.

Though, according Judge Kapetan ruling:

"… the Labor Code listing mechanism does not constitute an unconstitutional delegation of authority to an outside agency, since the voters and the legislature have established the basic legislative scheme and made the fundamental policy decision with regard to listing possible carcinogens under Proposition 65, and then allowed the IARC to make the highly technical fact-finding decisions with regard to which specific chemicals would be added to the list.

"As Monsanto admits, the IARC's list is not created in response to the Labor Code listing mechanism or Proposition 65, and in fact IARC has stated that it disavows any policy or rulemaking role, and that it does not intend its determinations to carry the force of law."

In the months that followed, a number of interested nonparties joined the lawsuit as "intervenors," either on behalf of Monsanto or on behalf of the State of California. When a case has the potential to affect the rights of interested nonparties (individuals or organizations not named in the lawsuit), they can become intervenors, effectively joining the litigation either as a matter of right or at the court's discretion without the permission of the original litigants. Intervention simply gives nonparties that could be affected by a case's outcome a chance to be heard.

Below are the intervenors in Monsanto Company v. Office of Environmental Health Hazard Assessment, et al.

Monsanto Intervenors:

OEHHA Intervenors:

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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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