Download MoFo Wins Unanimous Proposition 65 Decision

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MoFo Wins Unanimous Proposition 65 Decision in California
Supreme Court
4/16/2004
Litigation, Class Actions, Consumer Products, Environmental Permitting + Regulation, Product Liability, Environmental
Litigation, Proposition 65 + Chemicals, and Appellate + Supreme Court
Press Release
San Francisco, April 16 -- Morrison & Foerster has won the first Supreme Court ruling for a defendant in a Proposition
65 case, as the state's highest court ruled unanimously for nicotine-patch manufacturer GlaxoSmithKline Consumer
Healthcare, LP and nine other defendants who marketed, manufactured, packaged or sold the products.
The California Supreme Court held on April 15 that California does not have the right to enforce its controversial productlabeling law over the express and contradictory labeling requirements of the Food & Drug Administration. This decision
reverses an earlier ruling by the California Court of Appeal, and represents the first Supreme Court limitation on the
enforcement of Prop. 65. Though there have been close to 20,000 Prop. 65 claims filed in California, this is only the second
case under the statute to be decided by the state's highest court, and the first to rule in favor of defendants.
"This is an important victory for manufacturers and others in the retail chain whose products are sold in California," said
Michele B. Corash, the lead attorney for GlaxoSmithKline and the San Francisco based head of Morrison & Foerster's
environmental practice group. "The court has held that FDA- mandated warnings on this product suffice, and that California
cannot impose an additional or different requirement than that imposed by the FDA." Arguing the case before the California
Supreme Court was James P. Bennett, resident in Morrison & Foerster's San Francisco office.
GlaxoSmithKline manufactures Nicotine replacement therapy products Nicoderm and Nicorette. Plaintiffs sued after the
company refused to change its label from the one mandated by the FDA. The company argued that the FDA's labeling
requirements represented a balance by the FDA of the remote risk of harm posed by these products versus the known
and substantial reproductive harm from smoking. The California Supreme Court agreed with GlaxoSmithKline that, for this
reason, the FDA label took precedence over California's.
Ms. Corash noted that GlaxoSmithKline's position was supported by the United States Department of Justice, as well as the
California Medical Association, the American Cancer Society and the American Lung Association.
"We are gratified not only that our client's position was unanimously vindicated, but also by the basis for the Court's
decision which recognizes that public health goals must take precedence over narrow 'single-minded' warnings. We hope
this decision will make Proposition 65 enforcers more selective about the cases they bring in the future," said Ms. Corash,
who previously served as General Counsel of the United States Environmental Protection Agency. Morrison & Foerster has
one of the largest Prop. 65 defense practices in the country.
The full list of defendants included GlaxoSmithKline Consumer Healthcare, LP (formerly SmithKline Beecham Consumer
Healthcare), which markets Nicorette and NicoDerm CQ; McNeil Consumer Products Company and Pharmacia & Upjohn,
Inc., which have marketed Nicotrol; Aventis Pharmaceuticals Inc., which is involved in the packaging of NicoDerm CQ;
© 2016 Morrison & Foerster LLP. All Rights Reserved.
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Alza Corporation, which manufactures NicoDerm CQ; and Costco Wholesale Corporation, Lucky Stores, Inc., Rite Aid
Corporation, Safeway Inc., and Walgreen Co., which retail Nicorette, NicoDerm CQ, and/or Nicotrol.
The full text of the decision is available at http://www.courts.ca.gov/supremecourt.htm.
© 2016 Morrison & Foerster LLP. All Rights Reserved.