When Proposition 65 (Prop. 65) warning requirements took effect for a common ingredient in shampoo and skincare products this past June, the plaintiffs’ bar took notice. To date, 29 notices of violation have issued to dozens of companies accused of using coconut oil diethanolamine condensate (cocamide-DEA) in multiple products. Defendants include some big names: manufacturers Paul Mitchell, L’Oreal, and Colgate-Palmolive, and retailers Target, CVS, Walgreens, Rite Aid, Sephora, and Amazon.
Cocamide-DEA was listed under Prop. 65 as a carcinogenic toxicant in June 2012, but companies cannot be sued until a year after a chemical is listed. The substance is commonly used as a foaming agent in soaps, shampoos, hair dye, cosmetics and household cleaning formulas. Though on the priority list for the Office of Environmental Hazard Assessment to determine a “safe harbor” level of the chemical, one does not exist. This means that a plaintiff can currently sue for any amount of the chemical being present in the product and negotiate settlements with companies agreeing to reformulate products such that this agreed amount becomes the de facto safe harbor in the absence of the state creating one. We have seen this before in many other listed chemicals. The other option for companies who believe their products do not require a warning is to conduct their own exposure assessments and litigate, allowing a judge to decide if a warning was required. This is an expensive option and one of the reasons so many Prop. 65 lawsuits settle versus go to trial.
OEHHA decided to list cocamide-DEA after considering a 2011 International Agency for Research on Cancer (IARC) research that found the chemical “possibly carcinogenic to humans” based on animal testing by dermal exposure. Interestingly, the study noted an increase in liver and kidney tumors in test using mice, but not in tests using rats. Public comment failed to convince OEHHA not to list the chemical. Groups expressing their opposition included the Consumer Specialty Products Association (CSPA), which noted that a chemical listing based on a two-page news article would be premature. The CSPA also objected to OEHHA’s use of the Labor Code to list cocamide-DEA, a mechanism it contended was purely ministerial and did not allow for consideration of alternative scientific arguments.
The way chemicals are allowed to be listed under Prop. 65 has been under attack as too lenient. In fact, in November 2012, the Third District Court of Appeals found that OEHHA could not list chemicals via the Labor Code solely based on an IARC classification of “possibly carcinogenic to humans” where the determination was based on less than sufficient evidence. (Styrene Information and Research Center v. Office of Environmental Health Hazard Assessment, 210 Cal.App.4th 1082 (2012).) The decision led OEHHA to remove some chemicals from the Prop. 65 list, but the agency has determined cocamide-DEA could stay even under this method.
We expect to see this litigation grow. There have been 11 complaints filed thus far, and there are no reported settlements yet.