Poisoned Goods: Suing to Clean Up Consumer Products

Katya Valasek:

We're joined today by Vineet Dubey, an environmental litigator in California. In his practice, Vineet takes on so-called bad actors, companies that are endangering the health and well-being of people through chemical contamination in their products. Think lead in baby food and unwanted chemicals in the water supply. Because of his advocacy, many products tainted with lead, phthalates, and cadmium, among other contaminants, have been taken off shelves. You grew up in a small town in Mississippi and knew from a young age that you wanted to be a lawyer. What piqued your interest in the law?

Vineet Dubey:

I grew up in Clinton, Mississippi, which is a suburb of Jackson. When I was growing up, there were about 20,000 people there. It was very interesting because it was a small town, not a ton of kids in the school system, but we had, I want to say, nine different schools in our school system. We had a school for first grade, then you went to another school for second and third, then you went to a school for fourth and fifth. There was a separate school for sixth. Junior high was seventh and eighth. Ninth graders had their own school, and then 10th through 12th was high school.

We just thought it was normal and that's the way school districts were set up. As we got older and as I got into high school, we learned that there was a reason why we had so many buildings and so many different school districts. That is because prior to desegregation, there was a black school district and a white school district in our town. We had a whole separate school district for the black kids, a whole separate school district for the white kids. And then when the town was desegregated and the school system was desegregated after Brown versus Board of Education, they had all these buildings. And so they put them all together for one school system. And that's why we all had so many different schools in our town.

So, you know, learning about that in high school and learning, obviously, we learned about the civil rights movement and the protests and the violence and everything that happened and how the country made that shift and that change. What struck me was that after all of the protesting, all of the people agitating to change the system, it was the legal system that actually made it happen. It was the Supreme Court. It was the district courts. It was Brown versus Board of Education. It was lawyers going into court, getting court orders that actually made the change take place and actually made it real. And that was very powerful to me growing up. I mean, I lived in a community where literally the kids that I was going to school with, black kids and white kids, their parents went to separate schools. They drank at separate water fountains. They did not play sports together. They rode different buses. And then in one generation, you had all of their children in school together becoming friends, sitting in a cafeteria together, playing sports together, learning from each other.

It's a powerful thing and it's a powerful testament to how far things can come in one generation. But the key for me that stuck out was it was the law. It was the legal system. That's what led to the change. And that's what made me want to become a lawyer.

Katya Valasek:

You were influenced by the history of the civil rights work that happened literally in your backyard. You aren't doing civil rights work, which is fundamentally about equal treatment under the law. But a similar spirit is there in the work you pursue through environmental law.

The people most likely to have lead in their paint or unwanted chemicals in their water are often the same people civil rights laws were designed to protect. So can you give me a sentence or two explaining at a high level what it is you do?

Vineet Dubey:

Yeah, that's right. You said it right. Equal treatment under the law. And I learned a lot about civil rights and I studied it and I made a shift in my career to environmental law and. It's to provide equal access to a clean environment to everybody, that that's what I work to do, regardless of your race, color, creed, regardless of your nationality, everybody deserves a right to have a clean environment.

What I do at a high level is, I sue companies that are selling products that contain toxic chemicals. And through our lawsuits, the companies either have to place a warning label on that product. So consumers are aware of what's in that product and they can make an informed decision or the companies have to remove the product in order to sell it in the state of California. So you have companies that are importing goods from China, from India, from all over Southeast Asia, and they don't have the same regulations that we have in terms of chemicals and what can be put into products when they're made. And instead of doing their due diligence and making sure that Americans aren't getting products, poisoned goods essentially sold to them, companies are just selling these products. So I work with environmental groups who are testing these products to hold these companies accountable and make sure the toxic chemicals are getting taken out.

Katya Valasek:

After a few years working at other law firms, you eventually started your own firm with a friend and now partner of yours. And over the past decade or so, you've litigated your fair share of environmental law cases. We have a lot I want to get into, like how these cases come to you and what are some of the first steps that you take when they do. But first, I want to set the stage by touching on the California law that you deal with the most. Prop 65, what is it?

Vineet Dubey:

California has a ballot Proposition system where if it's a certain amount of signatures, if you get 50,000 or 100,000 signatures in a year, then a Proposed law can go on the ballot in the next election cycle. And if a majority of voters vote for it, that becomes law. I mean, it's basically a form of direct democracy.

And in 1986, I believe it was Proposition 65 got on the ballot. So there were a group of environmentalists who wanted California to kind of lead the charge in maintaining a clean environment. They put Prop 65 on the ballot and a majority of the citizens voted for it. And it came into law in 1986. And initially it was focused on clean water, but it was a broad statute. So it basically listed hundreds of chemicals that we know cause cancer and cause reproductive harm. And it said, if you're selling products into California with these chemicals, consumers have to be made aware. It's a consumer awareness statute at its base. So if a consumer goes into a store and wants to buy two products, one has a Prop 65 warning that said this product contains lead. You have another product that doesn't have that warning. Consumers should know that and be able to make an informed decision.

Katya Valasek:

I guess it's not surprising that that feels very progressive in terms of awareness about what's around us in our products, what's going into our body. Are there any other California specific environmentally related laws that you work with or around?

Vineet Dubey:

No, I'm primarily just in the Prop 65 space.

Katya Valasek:

So you mentioned earlier that you work with environmental groups when you're litigating. Is it ever an individual that comes to you and says, hey, I think my drinking water is contaminated? Or is it primarily through organized groups that are looking to make a change?

Vineet Dubey:

It's primarily through organized groups. One of the very first Prop 65 cases that I did that kind of led me into this area of litigation was an individual came to our office. And like you said, this was back when I first started my law practice. It was me and my partner, who was a very good friend of mine from law school. We had one little office. We were both two desks in one office. We were our own paralegal, our own receptionist. We went to the bank. We filed documents at court. We answered the phones. We were in the infancy of our practice and we were doing everything. And we had had some good results.

And because of those results, an individual sought us out and said, look, there's this law called Prop 65. And one of the main components is every restaurant or bar in the state of California that sells alcohol is supposed to have a very big warning posted to let pregnant women know about the dangers of alcohol. This individual said, look, I don't think it's happening at a ton of restaurants and bars.

A ton of establishments that sell alcohol don't have these warnings. And so we looked into it and we did some research and we realized that was true. So that was my first Prop 65 action that I brought.

We started kind of small and it snowballed into a statewide action where the liquor, wine and beer trade groups that run basically all three of those industries in California all became involved. And they all agreed to a settlement where every year they'd work together to send those notices to every business in the state that has a liquor license that sells wine, beer or alcohol to make sure warnings were posted. So that was our first Prop 65 case. And that was with an individual.

After that, all Prop 65 cases were public records. The attorney general's office posts all the cases. Then an environmental group saw our success in that area and came to me and said, look, we test products. We test products for phthalates, for lead. We want to help consumers be healthier. Would you like to work with us? And I said, yeah, bring me a couple of cases. Let me look at them. Let's see how they go. And let's see if they work well together. And you know that was hundreds of cases ago. And I've worked with the same group over and over again to really do a lot of good and really clean up a lot of products since then.

Katya Valasek:

So when someone comes to you with a matter, whether it's that individual who noticed a lack of signage or a group, you said the first thing that you do is do research. What sort of research are you looking to, particularly when it has to do with the environmental companies who are doing the testing for you? What do you look for to verify that it's accurate and a cause of action that you should take on?

Vineet Dubey:

So an environmental group will come to me and say, here's a product. We purchased it. We've tested it. Here are our test results. And so the first thing we'll do is look at the results and make sure it's from an accredited lab. It's doing the type of testing that is required by the state and required by case law. And then once we see that and we see that the product actually contains the chemical, I then send all that information to a toxicologist. Toxicologist looks at what is the product? How does the average consumer use it? What are the percentages of the chemical in that product? When an average consumer uses this, will they be exposed to the chemical in a way that violates Prop 65? So it's not just, Hey, let's find a product that contains a chemical that's on the list of violated chemicals.

It's if you find a product that has that chemical, the way a normal consumer and average consumer would use that product, are they actually exposed to the chemical? And if they are, then you can bring a Proposition 65 case. So there's a couple of levels.

First, you have to find the testing. Then you have to have a toxicologist and I work with two or three different toxicologists that are really good experts in court. They're well-renowned. They have great reputations. They've done this for years. They're quality scientists. And if they look at the product and they put together an assessment for me that says, yes, a consumer would use this product and hold it for five minutes at a time. And because of that DEHP would get on their skin. And because of that, they're contaminated in a level that exceeds Prop 65 allowances. You have a case. That's the first step. Once we confirm with a toxicologist, there's a violation. Then you send out what's called a 60 day notice to the company, to the violator. And this is all per the statute.

So you send out a 60 day notice. It goes to the violator. It also goes to the attorney general's office of California. So they're aware of what's going on. They oversee the whole Prop 65 world. And essentially that notice says company, we believe you're in violation of Prop 65. This product contains this chemical and it's exposing consumers in violation of the law. Please contact me within 60 days to try to resolve this matter or else we will file a lawsuit. And that's by statute. We have to wait 60 days before we can file a lawsuit. Several times these bad actors will contact their attorney will contact me and say, Hey, can you send me your testing? Let us take a look. Let's talk. If we're able to resolve the matter without litigation. Great. Because we're cleaning up a product. We're not increasing everybody's costs and fees. We're not making the court system get more clogged. That's the goal is the companies come to the table and say, Hey, we're going to put a warning label or we're going to clean up this product.

If they don't, then we have to file a lawsuit. And we go that way and we litigate, which is also fine. But that's kind of the general beginning process of how you start a case.

Katya Valasek:

So you're hired by these environmental organizations, but the work you're doing is on behalf of the public. So who is your client?

Vineet Dubey:

That's right. Because of the way the statute is written, when you bring a Prop 65 action as a private enforcer, you're bringing it on behalf of the general public of California. So it's not exactly a class action, but it's, it's sort of a class action in a different way.

So my client is the environmental group, but it's also the general public of California. We have to make sure that any settlement we enter into has a benefit to the public and the attorney general's office oversees us to make sure that's also the case.

Katya Valasek:

I am so glad you brought up settlement because as I was preparing to interview you, the main question I had flashing in front of my eyes was when it comes to settlement, when you're dealing with something that you know was harmful or bad for human contact, how do you decide what's enough of a solution when it seems like the clear answer should be, well, this shouldn't be in any of the products. So how do you decide what's a fair settlement?

Vineet Dubey:

The number one thing that we look at before we settle is injunctive relief. And you know, and what that means is what are they agreeing to do to fix the problem? Prop 65, it's a consumer awareness statute. It's not a statute that says you're not allowed to sell a product with this chemical. It's a statute that says consumers must be aware. So a lot of times if they come to the table and say, look, if we put a warning label on this product, we're complying with the statute. They're right. You know, that that's correct. What we always push for is take the chemical out. Your settlement number will be lower. Consumers will want to buy your product. Consumers are not going to see a warning label on that product. And you know, it's going to be more beneficial to everybody. Sometimes they say, yes, you're right. We want to do that. Sometimes they're going to say, look, Prop 65 is a warning statute. We're okay with putting a warning label on the product and letting consumers make their decision. And that's something we have to take into account because technically they're right. But if that's the case, we generally do make them pay more. So it hits them in their pocket, but a little bit more so that they don't do it again, if possible.

Katya Valasek:

Who gets the money in the settlement? Where does the money go?

Vineet Dubey:

The money is divided up into civil penalties and attorney's fees and the civil penalties portion, 75% of that goes to the state of California. So it goes to a OEHHA, is their organization that kind of regulates public health and regulates Prop 65 and does all kinds of research and regulations for the state government. So most of the civil penalty goes to them.

The remainder of the civil penalty goes to the client. So it would go to the environmental organization who brings the case to me. And then we have a portion for attorney's fees, which reimburses me and my firm for the time that we put in, because this is all contingency work. Like we don't get paid. Nobody's paying me hourly for what we do. We get paid if we settle the case and we resolve it successfully.

Katya Valasek:

And does the attorney general have to approve settlements before they move forward?

Vineet Dubey:

It does. It overlooks everything. The attorney general can look at any settlement and step in and say, Hey, we don't like this. You need to have a more stringent this, or you're taking too much money here, or this is not right. And that's a good thing. That's a good thing so that people aren't abusing the statute and the law.

Katya Valasek:

So you were not a science major in college, despite you talking about scientific tests and terms with us today. How long do you feel like it took you to grow, to understand the science behind the chemicals?

Vineet Dubey:

I was a political science major. So no, no hard sciences whatsoever. So look, it took me probably three or four years initially of doing this over and over and over and learning about a certain chemical to really get a good handle on the science regarding that chemical. So when we were doing lead cases, it took me a couple of years of doing lead cases over and over and learning and reviewing and speaking to our toxicologists and understanding the lab results to really get a good handle on it. It's a constant ongoing process because now we're doing a lot of PFAS cases, PFAS, the forever chemicals. And that's a whole new science. That's totally different test results, ways to measure than a phthalate case, for example. So it's kind of an ongoing process. I'm still learning. I'm still learning every day with new cases that I take on, but it definitely took three or four years to really get a good handle on some of the science.

Katya Valasek:

And I think you're in an interesting position because you're not the scientist, you're the attorney. You have to be able to communicate not only the science, but what its impact is in relatively clear language to be able to get the importance of the case you're bringing. And you also need to understand sort of the business side of things and the business impact to be able to be persuasive to the companies that you're working against.

Are the different viewpoints at odds in every case you bring?

Vineet Dubey:

Not in every case. There's a lot of different factors that go into each one of these cases. And you're right. What do I have to do? I have to understand the science. I have to be able to explain the science to other lawyers because I'm, I'm not dealing with scientists. I'm dealing with defense counsel who are also lawyers. Yes. Some of them have a science background, but at our core, we're all attorneys and not scientists. And then you're right. There's competing business interests, right? I can frame an issue for a company and basically say, you know, look, think about it. You sell a food product. Do you really want your food product to have a warning on it that says this product contains lead? Of course not. Right. Reformulate the product, figure out where the problem is in your production process and find out where the lead is and take it out, spend the money to do that and you're going to make more money on the backend because more consumers are going to purchase your product. So yeah, it's kind of juggling it's moving parts and it's trying to keep, keep those all sensical to defense counsel and to my client as well. It keeps things interesting. You know, a lot of different angles to look at each one of these cases.

Katya Valasek:

Well, speaking of lead in food, you worked on a pretty alarming case about lead in baby food. Can you tell me the story of how that came to you and the specifics of that case that you were able to litigate?

Vineet Dubey:

Sure. Let me ask you a question. Do you think the federal government regulates the amount of lead and baby food?

Katya Valasek:

Well, I feel like that's a loaded question and I feel like I'm supposed to answer that. Yes, of course it does, but I'm guessing it doesn't.

Vineet Dubey:

They don't, they don't. Isn't that crazy? There's no federal law that says if you're selling baby food in the United States, it can have this amount of lead, right? There, there's no law. It's insane. It's wild. It's wild.

The only state that has any kind of level for lead it's California and it's through Prop 65 and even there it's, it's 0.5 micrograms a day is what someone can be exposed to and they have to make a little bit of an allowance because the environment is so contaminated that so much of our food has small amounts of lead. One of the environmental groups that I work with came to me after they had tested a Gerber baby product. This was three or four years ago. I currently have a seven year old and a five year old. So at the time my kids were one and three and eating baby food. So it hit home and it was a really big deal. We brought the lawsuit against Gerber. You know, we fought with them for a while.

They agreed to put in certain protocols to make sure they actually changed where they were sourcing some of the products for one of their baby foods that they think was causing the lead. And it looked like that was the problem. So we got a great result. We got them to completely change some of their sourcing in order to get lead out of some baby food. But I'm still shocked to this day, there still is not a federal law that says a baby food product can contain this amount of lead. There's just not. After the fact, if kids get sick, yeah, you can bring an action against a company, but there's no regulation right now.

Katya Valasek:

So you said that it took a while to reach a resolution with Gerber. What was their defense? What were they pushing back on?

Vineet Dubey:

It was about two years, and their defense was, look, it's naturally occurring in the soil. We don't have any control over contamination in the soil. The amount that kids are eating is not adding up to a contamination or an exposure. The Prop 65 says it is. And they have their scientists, they have scientists, they have toxicologists. We're talking about huge corporations here, right? I mean, who owns Gerber? I think one of the owners is Nestle. We're talking about the biggest corporations in the world.

So when you're fighting these corporations, they have all the money in the world to spend on scientists, to spend on lawyers, to spend on toxicologists, to show you all this research that they've commissioned for the past 20 years. So, you know, they have defenses and they fought, but you know, we did, we did a pretty good job, I would say, in fighting back.

Katya Valasek:

How do you mentally square the fact that you're going head to head with a giant corporation and you're operating on contingency? How does your firm approach that work now, hopefully get paid later reality?

Vineet Dubey:

Well, look, luckily our firm, we've, we've done contingency. That's all we've ever done. We've never taken hourly work. So it's always been our mindset. You know what? We're front loading this. We're covering the cost. We're kind of David against Goliath. And we've always gone up against big, huge corporations. That's the mindset. We understand it could be two or three years on a case before we get paid.

We have different departments that bring in money. These departments are constantly generating income that helps pay for some of the other bigger cases until those cases resolve. And that's just, it's more of a business model that we've been good at. Luckily, we've been able to settle big cases along the way, smaller cases consistently to keep money coming in so that we can, you know, fight this fight.

Katya Valasek:

While you're in settlement discussions or trying to work with the corporations, are you also imagining or planning for what litigation may look like in case the settlement negotiations fail?

Vineet Dubey:

You are, you absolutely are. You're pushing the case forward as if you have to litigate it. And that's for a couple of reasons. One is because you may have to litigate it and you want to be ready. And two, the harder you push towards litigation, the better your chances of getting a settlement are because you're showing the defendant that you're serious, that you will take this all the way. And while you're doing it, you're getting information from them that's helping your case. So they're starting to see the weaknesses of their case as you push forward.

Katya Valasek:

It sounds like something that you really, really like is taking these pieces and fitting them together into a big picture that gives you all the information you need to go after these big corporations. How can you tell when the other side is starting to see that weakness of their case that you just mentioned? What shifts and how they're communicating with you?

Vineet Dubey:

Their tone can shift. I mean, look, sometimes they'll, they'll reach out directly. Hey, we need, let's set a call. Let's talk a little bit. Let's bring the heat down a little bit and see if we can start talking resolution. You'll get an email out of the blue that says, Hey, we received your latest letter or your, your latest response. Let's talk. And then it's kind of a niche area in that all the attorneys I deal with, it's all big law, it's all big corporate counsel, but they all have environmental departments. And so a lot of times I'm dealing with the same attorneys over and over again that represent these huge corporations. And so now I have pretty good relationships with a lot of them because we've worked together a lot. We've settled a lot of cases. They know that I'm a pretty straight shooter. I have a good reputation in the industry, so they'll pick up the phone or they'll send me an email and I can immediately tell when they're, they're shifting from, Hey, let's fight, fight, fight to, Hey, let's talk settlement.

Katya Valasek:

One of the things that critics of Prop 65 often point to is the oversaturation of warning labels. They are everywhere. I'm curious if this presents a challenge in your cases.

Vineet Dubey:

I think that's a fair point, right? I mean, we've all driven into a parking garage, right? And seeing a Prop 65 warning on the parking garage. And then what, are you not going to go park your car? Are you not, are you going to go somewhere else? Right. And I understand that.

I understand there could be the law is not perfect and things like that show that the law is not perfect. You know, that being said, you know, if I'm in a grocery store and I see a food product that has a warning label and one that doesn't, I think it's important for a consumer to see that and I'm going to pick the one that doesn't have the warning label.

I think it's still a very important law that's giving consumers more awareness and in people's everyday lives, they can make healthier decisions because of this law. And I think that's a good thing. And I think that's important. Are there some tweaks that potentially could be made at the, at the legislative level? Sure. Nothing's perfect. And I'd like to see some of that happen because it makes my job easier.

Katya Valasek:

Prop 65 lets people use a court system to right wrongs, but there are other laws around the country that do similar work in different contexts. What we often see are cottage legal industries that pop up around those laws. Do you see yourself as an advocate for the next law that does a bit more than just require consumer information?

Vineet Dubey:

Sure. If we could pass some laws that say, you cannot use certain chemicals in the state of California and just, you can't use them and products. We know these chemicals are terrible. They're dangerous. They cause cancer. They cause reproductive harm, which means if pregnant women are exposed to them, their babies can have issues and birth defects and issues throughout their whole life. Absolutely. I would love to see that law. It's an uphill climb even in California because of these companies and how much money they have and the lobbying power that they have. But a hundred percent, I would, I would back that law to the hilt.

Katya Valasek:

You very clearly love being in the trenches of this litigation work, but over the course of your career, your role has changed as a partner and leader at your firm. You've now taken on more management-based tasks. Do you miss the work? Do you wish you were working on more cases?

Vineet Dubey:

I enjoy what I'm doing now. I literally have a couple of days a week where it's all firm management. It's all meetings with department heads. It's talking to my partner about it's meeting with our marketing team. It's talking about hiring, figuring out who we need and what role and what's going on. And our firm has grown in the last 10 years, basically from me and my partner to now 25 people and about 10 attorneys.

So look, I spent a few days a week doing that and I spend the rest of my week working on my cases and doing litigation. And it's actually, I think it's a very good balance and I'm really enjoying it. And it's exciting because we're growing and getting bigger and like becoming a more forceful, established firm.

Katya Valasek:

So I have to say during our conversation, it's hard not to get a little unsettled about things I love and what might be in them. I already know there's microplastics in my teabags and all sorts of things that I shouldn't be eating in my chocolate. But it's hard not to have a conversation with you about what you do and not worry that there are dangerous chemicals in everything. I know you had small children when you were litigating the Gerber case, but has knowing what you know about the prevalence of these kinds of toxins change how you operate personally in your day to day?

Vineet Dubey:

For sure. I don't want to be a downer and I don't want to be, the world is depressing enough as it is these days, right? It's, there's a lot of crazy things going on, but people have got to be aware there's tons of chemicals in what we eat and what we consume. And the more that we learned about it, just personally, you know, we use all stainless steel stuff in the kitchen. We don't use anything plastic. We use glass instead of plastic. Whenever possible, most of our food, and this is a luxury that we're able to do is organic and from farmer's markets. We really trying to stay away from pesticides. We're getting meat and chicken that's grass fed and pasture raised and all that stuff because it makes a difference. It really makes a difference. So it's definitely changed the way that we look at our life. We're much more aware of everything we purchase, everything we put into our bodies and our kids' bodies. Nothing's going to be perfect. You're never going to be able to just stay away from chemicals and the contaminated environment, but you can make it a point to really try. And that helps. And that's what we do.