Overview
(September 20, 2018, San Francisco) — The Superior Court of the State of California, County of Alameda, has approved a consent judgment that establishes Proposition 65 "safe content" levels for phthalates in fishing lures. The consent judgment gives the green light to a comprehensive exposure assessment and product testing program spearheaded by Steptoe that sets appropriate warning levels for exposures to phthalates in soft PVC fishing lures.
California's Proposition 65 allows private enforcers to sue businesses if their products expose users to any detectable level of a listed chemical, and at trial shifts the burden of proof to the defendant to show that the actual level of exposure to the average user is not high enough to trigger a warning. Faced with the cost and complexity of proving that exposures do not trigger warning, the vast majority of defendants simply settle the case accepting the plaintiff’s demands for reformulation standards well below the levels that the statute actually mandates.
However, a group of fishing tackle manufacturers represented by Steptoe took a different tack when sued by Kingpun Cheng, an individual who alleged that PVC soft bait lures require Proposition 65 warnings. Working with the American Sportfishing Association, as well as parties in the case, the Steptoe team, led by Carol Brophy, spearheaded a comprehensive exposure assessment and product testing program that established appropriate warning levels for exposures to phthalates in soft PVC fishing lures. These "safe content" levels, and procedures for confirming them, were accepted by Cheng and incorporated as reformulation standards in the consent judgment entered by the superior court on September 11 in the matter of Kingpun Cheng v. Zoom Bait Company, Inc. et al. (RG17878968).
This consent judgment is significant for two reasons. First, parties to the consent judgment can avoid providing unnecessary warnings under Proposition 65 in two ways: a) a company may avoid warning if it can substantiate that the PVC substrate does not contain more than 50% to each of four phthalates, DINP, DIDP, DEHP, or BBP. If the level of a phthalate exceeds 50%, the defendant may still avoid warnings but will be required to use a more expensive alternate testing method (NIOSH Method 9100) to demonstrate that the amount of phthalate migrating out of the lure during the test does not exceed 90, 1,000, 160 and 270 μg/cm2, respectively. The exposure assessment was developed by EnSIGHT's Mike Easter, who used exposure assessment methodology that has been approved by California’s Office Of Health Hazard Assessment when that agency has approved Safe Use Determinations for phthalates in other consumer products.
The consent judgment also is notable because it contains an opt-In feature, which will allow other companies that manufacturer and/or distribute soft bait lures to use the safe content levels to avoid warning by joining the forthcoming opt-in consent judgment. The American Sportfishing Association, and the plaintiff’s counsel, Parker Smith, are jointly administrating the opt-in program.
The settling defendants in this matter include Zoom Bait Inc., Big Bite Baits Inc., Crème Lure Company, Strike King Lure Company, Pure Fishing Inc., and Bass Assassin Lures. A copy of the consent judgment and the declaration of Brophy in support of entry of consent judgment are available from Steptoe upon request.
Along with Brophy, the Steptoe team that helped negotiate the settlement included associates Jessica Maneval in Washington and Christopher "Smitty" Smith in Los Angeles.
About Steptoe
In more than 100 years of practice, Steptoe has earned an international reputation for vigorous representation of clients before governmental agencies, successful advocacy in litigation and arbitration, and creative and practical advice in structuring business transactions. Steptoe has more than 500 lawyers and other professional staff across offices in Beijing, Brussels, Chicago, London, Los Angeles, New York, Phoenix, San Francisco, and Washington. For more information, visit www.steptoe.com.
