Products Liability Law Daily Wrap Up, WARNINGS ISSUES—HOUSEHOLD PRODUCTS—C.D. Cal.: Consolidated claims against gas stove makers dismissed in pollutant emission suit, (May 6, 2025)

By Pankhuri Bhatnagar, B.A. LL.B.

The consumers’ claims were precluded by California’s Proposition 65 and barred by the First Amendment.

In an action brought against three gas stove manufacturers by consumers who discovered that the companies failed to warn about the health risks of pollutants released from their stoves, a federal district court in California granted the companies’ motion to dismiss. The court found that the consumers lacked Article III standing to assert injunctive relief claims because the asserted injury was speculative. In addition, the consumers could not evade Proposition 65’s notice requirement by narrowly focusing on uncovered chemicals and non-carcinogenic health risks. Finally, their proposed warning would likely violate the First Amendment due to lack of scientific consensus regarding the cited health risks (Hedrick v. BSH Home Appliances Corp., No. 8:23-cv-00358-JWH-JDE (C.D. Cal. Apr. 28, 2025)).

Background. Between 2017 and 2022, several individuals purchased gas stoves from BSH Home Appliances Corporation, Whirlpool Corporation, and Samsung Electronics America, Inc. (collectively, companies or manufacturers). By 2023, they became aware of the existence of the health risks of harmful pollutants emanating from gas stoves and brought three class action suits against the companies, alleging that the companies (1) did not warn of these risks on the product’s packaging, instructions, and warning labels; (2) made misleading “partial representations” by warning of other risks; and (3) represented that their products were safe and fit for ordinary home cooking. These actions were consolidated, and the complaints were partly dismissed. The amended complaints focused only on the failure to warn allegations while adding facts about the consumers’ likelihood of suffering future injuries. The companies again moved to dismiss the complaints.

Standing. The manufacturers argued that the consumers lacked Article III standing. It was held in a previous ruling that the individuals had standing to assert claims for damages because they alleged that they would not have purchased the gas stoves if they had known about the stoves emitting harmful pollutants. Since the allegations supporting this conclusion remained unchanged, the ruling remained. The injunctive relief claims were previously dismissed. The amended complaints averred that the consumers would “purchase another stove in the future” and would like to buy them from the companies here if the latter produced stoves that do not emit harmful pollutants. But the consumers could not currently rely on the manufacturers’ representations about the products being safe for home cooking and accordingly asked the court to order them to stop selling “defective, unsafe Products without warning of the defect.”

The consumers cited Davidson v. Kimberly-Clark Corporation, 889 F.3d 956 (9th Cir. 2018), where a woman purchased baby wipes believing that they were flushable, wished to buy them again from the defendant manufacturers, but was hesitant to do so due to uncertainty whether the “flushable” label remained false. The Ninth Circuit allowed the injunctive relief claim because a consumer’s inability to rely on a package representation, even if the consumer knew the same representation to be false in the past, was an ongoing injury that justified an order barring false advertising. However, here there were no allegations that the stove makers were mislabeling their products, that the consumers were being tempted to purchase stoves because of false or misleading advertisements, that the individuals wanted to buy new stoves in the present, or that they were uncertain whether the labels remained false. Instead, the class members posited that the manufacturers might someday produce stoves that do not emit pollutants, which the individuals would be willing to buy, but that absent an injunction, the companies may omit that information. Thus, in contrast to the ongoing injury in Davidson, the injury asserted here was attenuated and speculative, not concrete or particularized, and therefore could not serve as the basis for Article III standing.

Notice. The companies contended that all claims against them were barred for failure to provide pre-suit notice under Proposition 65, which prohibits companies from “intentionally expos[ing] any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning.” Cal. Health & Safety Code § 25249.6. Several pollutants emitted from gas stoves—including benzene, n-hexane, carbon monoxide, and toluene—fall within the scope of Proposition 65 but nitrogen oxides do not. The consumers countered that their claims did not fall within the scope of the proposition because they were based on the dangers of nitrogen dioxide, alleged health hazards such as asthma rather than only cancer, and stemmed from wrongs separate from a failure to warn. In an analogous case involving gas stoves, Drake v. Haier U.S. Appliance Solutions, Inc., 2024 WL 2273192 (N.D. Cal. May 20, 2024), a district court rejected the plaintiff’s invitation to turn a Proposition 65 claim into a claim arising under other statutes by “narrowly refer[ring] to the harm posed by a single chemical not listed in Proposition 65.”

Further, the individuals here cited articles which referred to the other chemicals covered by Proposition 65 and discussed stoves emitting pollutants like carbon monoxide at levels “linked” to “cancer.” Next, for the claims to arise independently, they must involve injuries beyond those covered by the proposition, not injuries ancillary to Proposition 65 injuries. For instance, Rodriguez v. Equal Exchange, Inc., 2024 WL 1421971 (S.D. Cal. March 31, 2024) involved allegations about the defendants’ failures to warn about “irreversible damage to brain development, liver, kidneys, and bones”—health problems other than cancer. And in Sciortino v. Pepsico, Inc., 108 F. Supp. 3d 780, 787 (N.D. Cal. 2015), the alleged misrepresentation was “not wholly derivative of a Proposition 65 warning.” Here, the consumers relied entirely on failure-to-warn theories and did not demonstrate that additional health harms of nitrogen oxides were independent of carcinogenic risks covered by Proposition 65.

First Amendment. When a plaintiff asserts a claim based upon a defendant’s failure to warn, the First Amendment may bar that claim unless the omitted or proposed warning is “(1) purely factual, (2) noncontroversial, and (3) not unjustified or unduly burdensome.” Cal. Chamber of Commerce v. Council for Educ. & Research on Toxics, 29 F.4th 468, 477 (9th Cir. 2022). The individuals argued that a warning about the dangers of pollutants satisfied this standard since such a warning would protect the health and safety of consumers and prevent consumer deception, was “purely factual,” and was uncontroversial. But to the extent that their proposed warning was factual and uncontroversial, that was because the warning was virtually indistinguishable from those required by Proposition 65. Since there was no scientific consensus about the non-carcinogenic health risks associated with nitrogen oxides, a warning pertaining to this would likely violate the First Amendment. Thus, the claims were barred under this theory as well, and the consumers were denied leave to amend since the identified defects could not be cured.

The case is No. 8:23-cv-00358-JWH-JDE.

Judge: Holcomb, J.

Attorneys: Christin Kyungsik Cho (Dovel & Luner LLP) for Robert Hedrick. Emily T. Kuwahara (Crowell & Moring LLP) for BSH Home Appliances Corp.

Companies: BSH Home Appliances Corp.

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