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Successful Defense in Proposition 65 Titanium Dioxide Lawsuit

In a July 10, 2015 order, an Alameda County Superior Court judge found in favor of defendants in a Proposition 65 lawsuit alleging exposures to titanium dioxide in cosmetic products.  The defendants successfully challenged the plaintiff’s 60-day notice based on admissions made by the plaintiff that it had not conducted any testing to confirm that the listed chemical was present in each product.

Titanium dioxide is listed as a Proposition 65 carcinogen in its “unbound airborne respirable” form.  In other words — and significant to this case and any other Proposition 65 lawsuit involving titanium dioxide — the listed chemical is a particular form of titanium dioxide.

In prior proceedings in this lawsuit, the plaintiff asserted that it only needed to demonstrate the presence of titanium dioxide, and did not need to demonstrate that the titanium dioxide in the cosmetics was in the unbound airborne respirable form identified on the Proposition 65 list.  In the summary judgment proceeding that is the subject of this court ruling, plaintiff’s retained expert asserted that some of the products would “more likely than not” expose users to unbound, airborne respirable TiO2.  After evaluating parties’ evidence, the court concluded that plaintiff had failed to demonstrate that each of the products cited in the 60-day notice would expose users to the listed chemical, i.e., unbound, airborne, respirable titanium dioxide.  The court therefore ruled in favor of defendants.

This court ruling sets the appropriately high bar for a plaintiff alleging exposures to the listed form of titanium dioxide and, indeed, other chemicals identified on the Proposition 65 as being in a particular form (e.g., carbon black).

If you would like a copy of the trial court order, please contact Ann Grimaldi at [email protected].

Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.