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Bongs don’t need to come with warnings of cancer-causing chemicals, California Supreme Court says

           

Bob Egelko

 

(December 22, 2022)

 

 

 

The state Supreme Court refused Wednesday to require manufacturers of products that can be used to smoke marijuana, such as a "bong” pipe, to warn customers that they could be exposed to a chemical that causes cancer. According to a lower- court ruling that the justices left intact, Proposition 65, which mandates such warnings for businesses that knowingly “expose” anyone to a chemical that causes cancer or reproductive harm, applies only to makers of hazardous substances and items that produce them, and not to vessels like water pipes.

Although marijuana is not nearly as carcinogenic as tobacco, the

U.S. Centers for Disease Control and Prevention have found some evidence that chronic marijuana smoking can cause testicular cancer, and the National Institute on Drug Abuse, another federal agency, said in 2020 that it was an “open question” whether marijuana smoke causes lung cancer. In 2009, California health officials added marijuana smoke to the list of potential cancer- causing substances requiring consumer warnings under Prop. 65, a ballot measure approved by the voters in 1986.

Environmental Health Advocates, which has brought other suits seeking penalties for violations of Prop. 65, filed suit in November

 

2020 against Sream Inc., a maker of glass water pipes, including one marketed as a “bong,” a term for a pipe that allows the user to burn marijuana or another drug, cool the vapor and inhale the smoke. The suit alleged that the pipe should have a warning label because it was designed to bring the user in contact with a cancer- causing chemical.

Alameda County Superior Court Judge James Reilly disagreed and dismissed the suit. The state’s First District Court of Appeal upheld his decision in September in a ruling that became binding on trial courts statewide after the Supreme Court’s action Wednesday.

Prop. 65 did not spell out what it means to “expose” someone to a cancer-causing chemical, but state health officials said in 1988 that it referred to “directly bringing individuals into contact with chemicals.” Sream’s water pipe does not meet that standard, the appeals court said.

“Marijuana smoke is an indirect consequence of the purchase of Sream’s water pipe, if the consumer chooses to use it to smoke marijuana,” Cindee Mayfield, a Mendocino County Superior Court judge temporarily assigned to the appeals court, wrote in the 3-0 ruling. While the pipe “can be used in a manner that ultimately creates the listed chemical,” Mayfield said, it does not generate or produce marijuana and cannot be classified as a device that directly exposes users to the drug.

In addition, she said, a Prop. 65 warning could mislead consumers into thinking that the water pipe itself contained cancer-causing substances.

Environmental Health Advocates then asked the state Supreme Court to remove the appellate ruling from the list of precedent- setting decisions that are binding on lower courts. Sream was joined by more than 30 business groups, including the state Chamber of Commerce, the Western Growers Association and the

 

National Federation of Independent Businesses, asking the court to leave the ruling intact. The high court denied EHA’s request Wednesday and also said it would not order its own hearing on the issue.

Representatives of Sream and its allies were relieved.

 

“We think this decision represents a common-sense interpretation of Proposition 65,” said Catherine Johnson, a lawyer for Sream.

She said the courts were properly concerned that requiring a cancer-warning label on the water pipes “would result in less meaningful warnings for consumers.”

“Aggressive bounty hunters should no longer be able to sue over products that do not themselves contain listed chemicals but that might just be used in conjunction with such products,” said Adam Regele, a lawyer for the state Chamber of Commerce.

A lawyer for Environmental Health Advocates could not be reached for comment.

The case is Environmental Health Advocates v. Sream, S277391.

 

Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @BobEgelko

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