Lawsuit over pool chemical safety reinstated

Pool chemicals may be a health hazard.

A consumer group accused manufacturers of chlorine-detecting pool chemicals of violating state law by failing to disclose a cancer-causing ingredient, but an Alameda County judge dismissed their lawsuit because it failed to precisely identify the actual ingredient - which is also on the state's list of carcinogens.

But a state appeals court reinstated the suit.

The judge's hairsplitting is inconsistent with the disclosure law's purpose, "protection of the public from toxins," the appeals court said.

The suit was filed by Consumer Advocacy Group in 2007 and 2008 against eight makers or distributors of kits that test chlorine levels in swimming pools and spas.

The suit alleged that the products contained a chemical, orthotolidine, or OTO, that is on the state's list of substances known to cause cancer. A 1986 initiative, Proposition 65, requires businesses to warn the public of exposure to any chemical that can cause cancer or birth defects.

The manufacturers responded that the ingredient in their products was not OTO but another chemical, orthotolidine hydrochloride. That substance, which the appeals court described as a salt related to OTO, is also on the state's Prop. 65 disclosure list.

After a non-jury trial in 2010, Superior Court Judge Robert Freedman ruled that Prop. 65 required the consumer group to prove that the products contained OTO, but it had failed to do so.

He dismissed the suit and ordered the group to pay some of the manufacturers' court costs, which came to $60,000, according to the plaintiffs' lawyer.

The chemicals in question have been
linked to cancer in human beings.

In reviving the suit, the First District Court of Appeal said a public-protection measure such as Prop. 65 "must be construed broadly" to accomplish its goals.

The proper question in the case is whether the consumer group can prove that the products "exposed individuals to a listed chemical without a warning," said Justice Maria Rivera in the 3-0 decision.

The justices told Freedman to reconsider the case and decide whether the group's failure to specify the chemical had impaired the manufacturers' ability to put on a defense, and if not, whether they had violated Prop. 65.

Reuben Yeroushalmi, the consumer group's lawyer, said Wednesday that the manufacturers now have a Prop. 65 warning on their labels. He said the suit seeks penalty payments for past violations, which would be split 3-1 between the state and Consumer Advocacy Group.

The pool kits contain "one of the most insidious, dangerous products" sold in California, Yeroushalmi said. He said the group's lawsuits have prompted other companies to remove the ingredient from their products.

Stephen Marsh, a lawyer for the manufacturers, said the defendants are confident that they can show that they complied with Prop. 65.

Source: San Francisco Chronicle 

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