SAN FRANCISCO (Legal Newsline) - Just because most bongs are used to smoke marijuana doesn’t mean they have to carry warning labels against pot smoke, a California appeals court, rejecting claims by a group associated with a San Diego law firm that sues companies over the state’s Proposition 65 cancer-warning statute.
Environmental Health Advocates sued Sream Inc., claiming its Roor Classic Straight 5mm Orange & Blue water pipe “exposes consumers to marijuana smoke,” which the state added to its list of carcinogens in 2009. EHA shares an address with the law firm of Nicholas & Tomasevic and isn’t registered under that name as a nonprofit with state or federal agencies. EHA also sued bongmaker Bio Hazard in 2021, making similar claims.
A trial court threw out the case against Sream, ruling the Roor Classic wasn’t subject to Prop. 65 “merely because it could potentially be used with a substance that can be carcinogenic.” California’s First Appellate District, Division Two, affirmed the decision, saying the word “exposes” in the law is generally limited to chemicals in the product itself.
Environmental Health argued California has upheld a foreseeable use argument in cases involving diesel truck emissions and benzene fumes emitted by gas lawnmowers. But the appeals court said Prop. 65 was held not to apply to champagne glasses and the California Attorney General in 2011 decided that “alcoholic drinking games and novelties” like beer pong didn’t need a Prop. 65 notice.
“Unlike the gas-powered lawn mowers or diesel trucks, EHA has not alleged that Sream’s water pipe products necessarily use marijuana and or require marijuana to function,” the appeals court concluded.