People Ex Rel. Lungren v. Cotter & Co.
Opinion
Opinion
Lambden, J.
Cotter & Company (Cotter) appeals the trial court’s denial of its summary judgment motion and the granting of the People’s cross motion for summary adjudication as to Cotter’s affirmative defense alleging preemption. Cotter contends the Federal Hazardous Substances Act (FHSA) preempts California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). We find the FHSA does not preempt the warning requirements of Proposition 65 and affirm.
Background
As You Sow (AYS), a nonprofit organization, investigates and sometimes litigates possible Proposition 65 violations. Health and Safety Code section 25249.6 requires warnings for products causing cancer or reproductive toxicity. Toluene is a reproductive toxin which requires a warning pursuant to Proposition 65.
On December 10, 1992, AYS sent a 60-day notice pursuant to section 25249.7 to the Attorney General of the State of California alleging that Cotter and 3 other paint and coatings manufacturers failed to provide warnings of toluene exposure in violation of Proposition 65. Cotter is a national member-owned cooperative with 300 to 500 True Value Hardware stores in California.