Case Name:
McCartney v. Starwest Botanicals, Inc.
Court Name:
San Francisco Superior Court
Defendant:
Starwest Botanicals, Inc.
Injunctive Relief:
Defendant shall be permanently enjoined from offering the product for sale to a consumer in California, directly selling it to a consumer in California, or "Distributing it into California," as defined. Defendant shall further be permanently enjoined from providing any information supplemental any Warning about Proposition 65 and/or California Health and Safety Code Section 25249.5, et seq., by way of its website or any weblink therefrom, which contains the following statement or statements, or any insubstantial variation thereof:
(a) "Prop. 65 does not distinguish between chemicals that are absorbed from natural phenomena -- such as volcanic activity, chemicals resulting from worldwide soil, water, and air pollution that are naturally absorbed by plants, local/regional problems like pesticide overspray or chemical leaks -- and those that are intentionally applied like synthetic fertilizers and pesticides or chemicals introduced later in drying, processing or manufacturing."
(b) "Safe Harbor Levels are often about 1,000 times much lower than those set by the FDA, EPA and WHO."
(c) "For many chemicals, the Safe Harbor levels are so low they cannot be reliably achieved in practice. In addition, because of the number of chemicals on both the Safe Harbor List and the full Prop. 65 list, no natural product manufacturer can afford to routinely test for more than even a very few of these chemicals."
(d) "The federal safety standard set by the FDA for lead in dietary supplements is no more than 10 ppm."
(e) "When manufacturing herbal products, it is often impossible to meet Safe Harbor levels. When Safe Harbor levels cannot be met Starwest applies the appropriate Prop. 65 warning to its labels. However, it is quite possible to ensure herbs are well under the national standard."
(f) "Our products meet or exceed all applicable safety standards."
(g) "We only sell products that conform to our standard safety amounts, which are lower than FDA standard safety amounts by many times."
Notwithstanding the foregoing, the following statements shall be permissible:
(1) "Prop. 65 does not distinguish between chemicals resulting from external sources like worldwide soil, water and air pollution, pesticide overspray or chemical leaks, which are then absorbed by plants, and those that are intentionally applied like synthetic fertilizers and pesticides or chemicals introduced later in drying, processing or manufacturing."
(2) "Safe Harbor Levels are much lower than those set by the FDA, EPA and WHO."
(3) "When manufacturing herbal products, it is often impossible to meet Safe Harbor levels. When Safe Harbor levels cannot be met Starwest applied the appropriate Prop. 65 warning to its labels."
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