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DiPirro v. Bondo Corp.

ELR Citation: 37 ELR 20173
Nos. No. A110913, (Cal. App. 1st Dist., 07/12/2007)

A California appellate court upheld a lower court decision finding that a manufacturer's product—automobile touch up paint—is exempt from the warning requirements of the California Safe Drinking Water and Toxic Enforcement Act, commonly known as Proposition 65. Because the paint contained toluene, listed as a reproductive developmental toxin under the Act, the manufacturer placed Proposition 65 warnings on its Material Safety Data Sheets included with wholesale shipments of the touch-up paint to automobile manufacturers. However, it placed no warnings on the actual paint bottles. An individual filed suit, alleging that the manufacturer violated the Act's warning requirements. The lower court ruled in favor of the manufacturer, and the appellate court affirmed. Substantial evidence supports the lower court's conclusion that the amount of toluene in the product does not reach the maximum allowable dose level, thereby rendering it exempt from the warning requirements. Nor was the individual entitled to a jury trial on the manufacturer's affirmative defense that warnings under the Act were not required. In addition, the lower court did not err in denying the manufacturer's motion for attorneys fees because the manufacturer did not vindicate an important public right or confer a significant benefit on the general public.