A vinyl-coated paper clip for $1.79 and a clear front report cover for $1.49 form the basis of legal action that could wind up costing a 50-year-old Merced County business thousands of dollars.
"Legalized extortion" is what Bob Bertelli, president of Bertelli's Health Mart Pharmacies in Atwater, Sonora and King City, calls the 60-Day Notice of Violation filed in July by Russell Brimer. The notice states that Brimer is a California citizen and is "acting in the interest of the general public."
The notice alleges exposure to lead in the paper clips and report cover, among other items. Such exposure allegedly violates Proposition 65, the "Safe Drinking Water and Toxic Enforcement Act of 1986." Birth defects and "other reproductive harm" can be caused by the lead in the product, the notice said.
Originally intended to protect consumers from all sorts of hazardous materials, the law has become a magnet for private attorneys who claim to be guarding residents and a target of business groups that claim many of the lawsuits based on Prop. 65 are simply "abusive shakedowns."
The Chanler Group, a Berkeley law firm, represents the "citizen enforcer" in the legal action involving Bertelli. That notice of violation also flags some big outfits for the same alleged violations -- Wal-Mart, Office Depot, FedEx and Staples, among others.
A message left for Josh Voorhees, who was said to be in court, from the group wasn't returned. Clifford Chanler sent an email from Connecticut, where he said he lives, in which he said he had called the Sun-Star's "desk," but he left no message. At the Sun-Star's deadline Sunday, he hadn't yet responded to an email giving the reporter's home phone number.
The group's website reads in part: "For the past two decades, the legal, scientific and investigative staff of The Chanler Group have dedicated themselves to the goal of removing hidden toxicants from a wide variety of consumer products, many of which are marketed to infants, children and pregnant women. In countless instances, the enforcement actions brought about by the firm's clients have resulted in constructive change through the elimination of hazardous substances and the imposition of millions of dollars of civil fines paid to governmental agencies."
However, to Bertelli and advocacy groups such as Citizens Against Lawsuit Abuse (CALA), the case of the vinyl covers represents just one more unintended consequence of well-meant laws being distorted and manipulated by lawyers who seek to settle their complaints for thousands of dollars. In the process they "leave businesses with fewer dollars to hire new employees and reinvest in their business," CALA wrote in a report.
Bertelli said he had no clue the vinyl covers might contain harmful materials.
Conversely, in a 2007 letter to then-Attorney General Jerry Brown, the Hirst & Chanler law firm said their clients were "among the prominent enforcers" of Prop. 65 by bringing claims "to promote the public health by preventing citizens from being unwittingly exposed to carcinogens and reproductive toxicants." That letter called small retail businesses like Bertelli's "the last best defense against toxic exposures."
"We had to hire a lawyer," Bertelli said. He hasn't yet heard from either the citizen enforcer or the law firm about what their next move might be. He estimated the average settlement from similar lawsuits at $15,000 to $20,000.
For Bertelli and other small businesses (he employs 43 people at the three pharmacies), it's just one more piece of red tape in a state snarled in rules and regs. As a pharmacist, he must deal with agencies at the county, state and federal level, each seeming to require more paperwork each year. "If we had 100 percent enforcement of all the documents, everything would crank to a stop," he said.
Once, for instance, his Atwater pharmacy hosted a helium tank to fill balloons for kids and parties. But the requirements for how to handle potential illness and injury, an exit strategy in case of accident and other provisions, caused him to get rid of it.
Bertelli actively supports church-, school- and sports-related events and institutions, plus 4H, in several communities. He's hired several former students who interned as part of Regional Occupation Programs.
Friday morning he and his staff were serenaded with Christmas carols by fifth-graders from Mitchell Elementary School. The kids got some goodies in return.
Bertelli's dad, Dan, started the family business 50 years ago; he still works as a pharmacist when needed. He set the tone that his son tries to sustain: to be the most accessible health care professional around. "You can actually talk to your pharmacist," Bob said. "We're there to help. We help people make the right decision for their peace of mind."
But Bob Bertelli worries that more and more pharmacies his size are disappearing because of shrinking profit margins. Big-store competition is one factor, to be sure, but the threat of lawsuits, the cost of meeting evermore complex regulations and laws that have outlived their usefulness also will play a role, he said.
One service that started Day 1 and has lasted to this day is free delivery to homebound customers. Now Berletti fears that service may have to be suspended if his legal bills get too high.
Executive Editor Mike Tharp can be reached at (209) 385-2456 or mtharp@mercedsunstar.com.
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