Overview
Before a Notice of Violation of Proposition 65 can be issued and served on a violator a would be enforcer has to obtain a Certificate of Merit by presenting evidence of the alleged violation to the state. But the fact that there is a duly issued Notice of Violation accompanied by a Certificate Merit does not by any stretch mean that the plaintiff has scientifically valid evidence that will ultimately withstand scrutiny at trial.
While defendants are not privy to the evidence submitted to obtain the Certificate of Merit during the course of litigation, it is safe to say that plaintiffs offer up reports of lab testing to establish the presence of a listed chemical in a food or consumer product. It is also safe to say that authorities do not conduct an in-depth review of the accreditation of the labs, or the sample collection or testing methodology employed by the labs. It is for this reason that a defendant should not take a plaintiff’s test result as outcome defining, and should conduct their own testing.
Among the explanations for why a Plaintiff’s report can be skewed, are errors in sample collection. About a decade ago I was litigating a case on door hardware, and for a good amount of time our non-detect test result could not be squared with the plaintiff’s test result showing a substantial amount of lead. Images of the door hardware tested by Plaintiff were produced in discovery. In the images the brass door hardware appeared so badly damaged it was grooved, thus solving the mystery as to why Plaintiff’s test result detected a substantial amount of lead. A more common error in sample collection than partially destroying the product, is the use of a solvent to wipe a product being tested. The solvent dissolves the product in a way that does not reflect how a product would be ordinarily used, resulting in much higher detection of a listed chemical in testing.
Labs that are not accredited for the type of testing they are conducting can make a whole host of mistakes. In another case a lab that was accredited for environmental testing, (testing dirt or air for contamination) was hired by plaintiff to test a food product. The lab did not have a reference sample for the product it had been hired to test, so that it was unable to calibrate its equipment properly. The lab had never tested that type of product, and ended up creating a new and unvalidated test methodology, and ultimately reported massively erroneous results. Plaintiff in that case split samples because the environmental lab explained it could not distinguish between organic and inorganic arsentic. When the same product was tested by a second lab, one certified for food testing, the results for the listed chemical were between 6 times and 256 times less. Where the first unaccredited lab showed a violation, the accredited lab showed that the samples were below a level agreed by plaintiff in an earlier consent judgment to constitute compliance with Proposition 65.
Sometimes the error can even be in the reporting itself. In another matter the plaintiff’s lab report reflected the detection of the listed chemical, but was not specific as to which component of the product contained the listed chemical. It turned out that the lab had reported test results for an internal component which the user would not come into contact with, and failed to specify the component in the report.
The take away is that a lab report that a plaintiff provides is not the end of any story. To properly asses a case, a defendant should rely on its own testing, testing it can ensure is actually conducted and reported accurately.
