U.S. District Judge Troy Nunley
SACRAMENTO - Saying scientific research doesn’t back up California state regulations, a federal judge has barred California Attorney General Rob Bonta and private citizens from using California’s controversial Proposition 65 to sue cosmetics products makers who sell products including titanium dioxide.
U.S. District Judge Troy Nunley of the Eastern District of California issued the opinion on Aug. 12, granting summary judgment to Personal Care Products Council (PCPC). Summary judgment is granted when a judge determines a trial is not needed to decide a case.
Under the ruling, Bonta, other California officials and agents, as well as private citizens, were enjoined from filing Prop 65 lawsuits involving cosmetics and personal care products containing airborne, inhalable particles of titanium dioxide.
The judge ruled that warning labels the state otherwise required under Prop 65, stating that using titanium dioxide poses cancer risks, violates the companies’ First Amendment rights because the state’s rules come despite massive disagreement among scientists over the health threat allegedly posed by titanium dioxide.
In the decision, the judge went through the requirements for government-compelled speech to pass constitutional muster based on case law and concluded that there isn’t sufficient scientific consensus to support such messaging on personal care products containing titanium dioxide.
The PCPC is a nonprofit business association whose members have been sued over failures to warn consumers about titanium dioxide, a whitening pigment that has been in use since the 1930s.
Proposition 65, an initiative that was passed in 1986, requires consumers be notified if products contain chemicals known to cause cancer or reproductive toxicity. The state Office of Environmental Health Hazard Assessment maintains a list of chemicals meriting product warnings, and listed titanium dioxide has been on the list since 2011.
Emily Manoso, a PCPC executive vice president and general counsel, called the ruling a significant victory for consumers in the state, as well as companies that sell cosmetics and personal care products.
“To compel businesses to provide Prop. 65 warnings that are not based on sufficient scientific consensus violates the First Amendment, is misleading to consumers and unnecessarily burdensome to businesses,” Manoso said in a statement emailed to the Southern California Record. “PCPC will continue to support and advocate for science-based regulations and laws that support the strength and integrity of the cosmetics and personal care products industry.”
The International Agency for Research on Cancer (IARC), a unit of the World Health Organization, published findings about the carcinogenicity of titanium dioxide in laboratory rats, but the IARC also said evidence is inconclusive to establish a similar link in humans. Even so, the agency ultimately concluded that the chemical is “possibly carcinogenic to humans.”
Nunley’s opinion, however, found little in the way of a scientific consensus that listed titanium dioxide poses a cancer risk in humans.
“Subsequent research … has cast some doubt on IARC’s conclusion that titanium dioxide is possibly carcinogenic to humans, and there remains somewhat of a scientific debate on titanium dioxide’s (and therefore listed titanium dioxide’s) carcinogenicity in humans,” he said.
Nunley also found problems with the government’s justification for imposing commercial speech based on the current science on titanium dioxide.
“The court also finds the Prop. 65 warning for listed titanium dioxide to be objectively controversial because there is a robust scientific debate over whether listed titanium dioxide causes cancer in humans,” he said.
Nunley found that the scientific studies about the chemical in question presented by both the plaintiff and the attorney general “reflect a ‘robust disagreement by reputable scientific sources’ as to the human relevance of the chronic inhalation studies in rats.”
