Environmental Health Advocates, Inc. has filed a significant complaint against Bio Hazard, Inc., alleging violations of California's Proposition 65. The complaint was filed in the Alameda County Superior Court on August 12, 2024, and accuses Bio Hazard of exposing consumers to marijuana smoke through their products without proper warnings.
In the original filing from 2020, Environmental Health Advocates (EHA) claimed that Bio Hazard manufactures and distributes marijuana paraphernalia, including glass bongs, which expose users to marijuana smoke in violation of California’s Safe Drinking Water and Toxic Enforcement Act (Proposition 65). According to EHA, these exposures occur through reasonably foreseeable use of the products. The plaintiff sought civil penalties amounting to at least $1 million and injunctive relief to prevent Bio Hazard from continuing its practices without providing Proposition 65 warnings.
Bio Hazard contested the allegations vigorously. In January 2021, they moved for a change of venue which was denied by both the trial court and subsequent petitions to higher courts. By August 2021, both parties agreed to stay the case pending an appeal in a similar case involving another manufacturer named Sream, Inc. This appeal was crucial as it dealt with whether bong products required Proposition 65 warnings due to consumer exposure to cannabis smoke.
In September 2022, Division Two of the appellate court issued its opinion in Environmental Health Advocates, Inc. v. Sream, Inc., ruling that EHA’s allegations were insufficient because they did not demonstrate direct consumer contact with marijuana by Sream’s water pipe products. The court rejected EHA’s argument that "reasonably foreseeable use" should determine exposure under Proposition 65.
Following this ruling, EHA and Bio Hazard stipulated to dismiss the action with prejudice. Subsequently, Bio Hazard sought attorney fees under Code of Civil Procedure section 1021.5 for defending against EHA's claims and participating as amicus curiae in the Sream case. They requested $73,931 for defense costs, $21,139 for their amicus brief in Sream, and $4,847 for filing the fee motion itself.
However, the trial court denied Bio Hazard's motion for attorney fees. The court ruled that Bio Hazard had not enforced an important right affecting public interest as required under section 1021.5. It noted that while Bio Hazard’s participation might have aided the appellate court in reaching its decision in Sream, this did not constitute a significant public benefit warranting attorney fees.
Bio Hazard appealed this decision but faced further setbacks as the appellate court affirmed the trial court's denial of attorney fees on June 13th, 2023. The appellate judges concluded that Bio Hazard’s primary motivation was pecuniary—avoiding civil penalties and costs associated with adding Proposition 65 warnings—not advancing public interest or conferring significant benefits on a large class of persons.
Representing Environmental Health Advocates were attorneys whose names are not specified in this document while Judge Banke delivered the opinion with Judges Humes and Langhorne Wilson concurring under Case ID A168332.