Teetotalers and Environmentalists Unite! California's Plaintiffs' Attorneys Use an Environmental Protection Law to Collect on "Beer Pong" Accessories
Last week a “concerned citizen” acting in the “interest of the general public” filed a rash of Proposition 65 (“Prop 65”) lawsuits against retailers for their sale of drinking game kits in California. Prop 65 threatens to impose penalties of up to $2,500 per violation, plus attorneys’ fees and costs, if a business knowingly and intentionally exposes any individual to a chemical known to the state to cause cancer or reproductive harm without first giving a warning.
These drinking game accessories, by themselves, are not alleged to contain any Prop 65 prohibited chemical. The argument is that the products are used to facilitate alcohol ingestion, and, “alcoholic beverages, when associated with alcohol abuse” must be accompanied by a Prop 65 warning when sold in California. The plaintiff says that, “[w]ithout proper warnings … California citizens lack the information necessary to make informed decisions on whether and how to eliminate … exposure to the toxic chemical [i.e., booze] from the reasonably foreseeable use of the products.”
Aside from thinking about all of the legal arguments that come to mind in these cases, let’s think more practically. California’s Attorney General reports that about 58% of the revenues from the 187 Prop 65 settlements in the state in 2010 went to attorneys fees and costs (over $7.8 million). These “beer pong” suits cost close to nothing to bring. Their allegations are essentially the same, they’re all filed in the same court, and it didn’t take a team of scientists costing thousands of dollars to test the products for cancer causing chemicals. These cases are about collecting attorneys’ fees. They are about as productive to society as, well, drinking games.
Prop 65 as an environmental and consumer protection law succeeds when it allows buyers to make educated decisions in choosing between two courses of action. One course involves buying a product that is known to some to cause cancer. The other involves not buying that product. These lawsuits aimed at beer pong tables and dart games do virtually nothing either to prevent the harm (i.e., cancer caused by alcoholism) or facilitate decision-making on the part of the consumer. Choosing not to buy Prop 65-labeled beer pong accessories just means that college students will drink to an epic battle of “Quarters” – unless plaintiffs’ attorneys sue to put a Prop 65 warning on those, too.