2023 was a busy year for Prop 65 with the highest number of Notices of Violation since its inception. The California law requires consumers receive warnings regarding the presence of chemicals that cause cancer or reproductive toxicity. Prop 65 applies to an ever growing list of chemicals and thus impacts a wide variety of businesses in California. Below are a few trends and developments seen over 2023.

Private Enforcement Actions

Prop 65 permits private actors to bring enforcement actions “in the public interest”, provided the private enforcers first issue a 60-day notice of intent to sue the alleged violator.[1] In 2023, there were 4,138 notices filed with the California Attorney General’s Office by 67 noticing parties—up from 3,170 notices in 2022, and the highest number filed in any year since Prop 65’s inception.[2]

Top targeted product categories included[3]:

• Food and herbal supplements
• Beauty/Personal Care/Hygiene/Cosmetics/Sanitizers
• Bag/Case/Purse/Pouch/Kit/Backpack/Tote
• Unleaded gasoline

Top targeted chemicals included:

• Metals (including lead and cadmium)
• Phthalates (chemicals used in plastic)
• Unleaded gasoline (wholly vaporized)

Changes to Listed Chemicals

2023 also brought about multiple changes to the list of chemicals to which Prop 65 applies, with 12 new chemicals added by the California Office of Environmental Health Hazard Assessment (“OEHHA”). For eleven out of twelve of the new additions, OEHHA cited findings by the International Agency for Research on Cancer (“IARC”), a division of the World Health Organization, which classifies chemicals as “possibly carcinogenic”, “probably carcinogenic” or “carcinogenic” based on the sufficiency of available evidence.[4] Notable new additions to the Prop 65 list include coal-tar pitch, as well as numerous other chemicals that may be found in plastics, dye, and other industrial products.[5]

A complete, updated Proposition 65 chemical list is available on the OEHHA website.

Notable Court Cases

The biggest Prop 65 opinion this year, Nat’l Association of Wheat Growers, et al. v. Bonta, et al., was issued by the Ninth Circuit on November 7, 2023. In that case, a group of agricultural producers and businesses challenged OEHHA’s decision to add glyphosate—a widely-used herbicide—to the Prop 65 list on First Amendment grounds. The plaintiffs argued that because IARC’s classification of glyphosate as “probably carcinogenic” was disputed by a number of international regulatory authorities and organizations, the state could not could not compel businesses to provide warnings stating that glyphosate is “known” to cause cancer.

Following a decision from the district court in plaintiffs’ favor, the state appealed to the Ninth Circuit. The Ninth Circuit affirmed, finding that because “the overall message that glyphosate is unsafe . . . is, at best disputed”, Prop 65 labels would require “plaintiffs to convey a controversial, fiercely contested message that they fundamentally disagree with.” Accordingly, because California had less burdensome ways to convey its message than to compel plaintiffs to convey it for them, the Prop 65 warning requirement as applied to glyphosate was unconstitutional.

A full write up of the Nat’l Association of Wheat Growers, et al. v. Bonta, et al. decision can be found here. The opinion is available here.

The air fryer industry obtained a notable victory at the trial court level as well. In Council for Education and Research on Toxics (“CERT”) v. Ace Hardware Corporation, et al., CERT sued numerous retailers and manufacturers alleging that defendants’ air fryers exposed consumers to acrylamide without warning in violation of Prop 65. Although air fryers do not contain acrylamide, CERT argued a Prop 65 warning was necessary because acrylamide is created when certain foods are cooked at high temperatures. Drawing on precedent from Environmental Health Advocates, Inc. v. Sream, Inc., 83 Cal. App. 5th 721 (2022), the Los Angeles Superior Court sustained defendants’ omnibus demurrer without leave to amend, finding that because cooking in air fryers only generates acrylamide in certain kinds of food and not all, defendants were not obligated to provide a Prop 65 warning. A full write up of the Sream decision can be found here.

Looking Ahead To Changes In The Law

On October 27, 2023, OEHHA published a Notice of Proposed Rulemaking, proposing amendments to existing sections of the safe harbor warning regulations for consumer product exposures.[6] One of the key amendments proposed is to modify the Prop 65 short-form warning to require additional information. The amendment would require short-form warnings to identify the specific chemical exposure for which the warning is being given, which is not currently required. For some companies, this may mean undertaking product testing to identify the specific chemical. The public comment period closed on January 3, 2024. We will continue to monitor the status of the proposed rulemaking for further developments.

FOOTNOTES

[1] Cal. Health & Safety Code § 25249.7(d)(1).

[2] https://oag.ca.gov/prop65/60-day-notice-search

[3] https://www.cps.bureauveritas.com/newsroom/ca-proposition-65-60-day-notice-summary-q1-2023; https://www.cps.bureauveritas.com/newsroom/ca-proposition-65-60-day-notice-summary-q2-2023; https://www.cps.bureauveritas.com/newsroom/ca-proposition-65-60-day-notice-summary-q3-2023; https://oag.ca.gov/prop65/60-day-notice-search.

[4] https://monographs.iarc.who.int/wp-content/uploads/2019/07/Preamble-2019.pdf

[5] https://oehha.ca.gov/proposition-65/crnr/chemicals-listed-effective-january-27-2023-known-state-california-cause-cancer-1; https://oehha.ca.gov/proposition-65/crnr/chemicals-listed-effective-april-21-2023-known-state-california-cause-cancer-111; https://oehha.ca.gov/proposition-65/crnr/chemicals-listed-effective-august-11-2023-known-state-california-cause-cancer; https://oehha.ca.gov/proposition-65/crnr/chemicals-listed-effective-november-17-2023-known-state-california-cause-cancer; https://oehha.ca.gov/proposition-65/crnr/bisphenol-s-bps-added-proposition-65-list-following-2023-meeting-developmental

[6] https://oehha.ca.gov/proposition-65/crnr/proposed-amendments-regulations-clear-and-reasonable-warnings-safe-harbor