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Quote of the Day - Dentist, n.: A Prestidigitator who, putting metal in one's mouth, pulls coins out of one's pockets. - Ambrose Bierce

Proposition 65 Warnings Inside The Box Deemed Sufficient For Dental Amalgam

Prop 65 law just got a bit more clear, thanks to Associate Justice Stuart R. Pollak of the First, Three (that's the Court of Appeal, First Appellate District, Division Three).  The Environmental Law Foundation sued a manufacturer of dental amalgam, alleging that the manufacturer, Wykle Research, didn't properly provide Proposition 65 warnings to dental patients.

After 1993, Wykle included the warnings on the outside of its box of dental amalgam, and later in 1998 added the warnings to the paper insert inside the box, although it does not appear presently in their online MSDS.  ELF was unhappy with Wykle's Prop 65 warning, and claimed that it was not reasonably designed or clear enough to provide notice to dental patients.  ELF argued that the safe harbor warning was not the best means to reach the patients who might be exposed to the mercury in the amalgam.  ELF also claimed that the warning was not conspicuous enough to assure that it would be read by those who received it.

The First, Three is unclear in one portion of its opinion:  whether a manufacturer must provide notice to the ultimate patient.  The Court termed it an "ancillary issue" that they need not address.  Prop 65 law hasn't yet gone that far, and this opinion doesn't reach that question, but rather leaves it open.  The other portions of its opinion are a model of clarity, and a good read for those trying to navigate a path through this thicket of rules and regulations. 

The appellate court affirmed the trial court's ruling that Wykle provided a clear and reasonable warning and that the notice inside the box was conspicuous enough to comply with the safe-harbor warnings required by the Prop 65 regulations.  The Court squarely rejected ELF's argument that Wykle had to provide a Prop 65 warning sign for the dentists to post in their offices for patients to see.  Associate Justice Pollak also reasoned that the small type in the box insert was sufficient because it complied with OEHHA's regulations that only obligated the use of "one or more" of the methods specified to provide the "safe-harbor warning," although in footnote 8 he expressed some misgivings whether the small font would actually put the dentists on notice of the warning.

Justice Pollak remarked that while the method Wykle chose complied with one of the acceptable methods of transmitting the warning under the regulations, it may be insufficient "to guaranty that the warnings reach the consumer/patient."   He went on, and said, it "may suggest a need for revisions to the statute or the present regulations - a matter not within the province of the court, and as to which we express no opinion..."

Doesn't sound like an activist judge to me. 


Posted by J. Craig Williams on Monday, November 21, 2005

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