Proposition 65 Notices of the Month – June 2020: Over 70 Seafood Products, Chips, Pretzels, Bread, Popcorn, Cookies, Dietary Supplements and Wheel Chair Components Attacked by Citizen Plaintiffs as COVID-19 Summer Begins

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The COVID-19 world continues. And so does the world of California’s Proposition 65 (“Prop. 65”). Citizen Plaintiff groups have sent hundreds of 60-Day Notices of Violation (“Notices”) during each month of the pandemic, challenging the chemical content of hundreds of different foods and consumer products. In June, Plaintiff groups sent close to 300 new Notices alleging that chemicals in foods and various consumer products exposed California consumers to chemicals at dangerous levels and thus required a Prop. 65 warning label. With the onset of summer, citizen Plaintiff groups sent an unusually high number of Notices alleging that seafood products, including clams, cuttlefish, shrimp, and snails contained allegedly toxic chemicals and required a warning.

Prop. 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires “clear and reasonable warnings” on consumer products (including foods) sold in California, if use of the products causes an exposure to chemicals on the Prop. 65 List. Common chemicals that Plaintiff groups target include lead, acrylamide, cadmium and arsenic. Our monthly overview of product and chemical trends follows and describes commonalities and themes in Prop. 65 Notice activity in June.

  • Lead and Cadmium in Seafood Products. In June, Plaintiff groups alleged that over 70 different seafood products contained metals (cadmium and lead), exposed California consumers to these metals, and thus required a warning. The sheer volume of these Notices is significant, and doubles and triples the number of Notices sent for seafood products in prior months. Products named in this month’s Notices include clams, cuttlefish, shrimp, snails, fish balls, calamari, squid, eel, oysters, and octopus.
  • Acrylamide in Snack Foods, Including Chips, Pretzels, Bread, Popcorn, and Cookies. Predictably, a number of Notices were sent alleging that the acrylamide content in snack foods, breads and cookies required a Prop. 65 warning. Just over 40 total new acrylamide Notices were sent in the month of June, and identified a variety of snack foods (including chips, pretzels, popcorn and cookies) and breads as allegedly containing levels of acrylamide that required a warning.
  • Lead in Dietary Supplements. In June, citizen Plaintiff groups continued the trend of sending Notices alleging that the lead content in dietary supplements necessitated a warning. 15 Notices were sent in June.
  • DEHP in Wheelchair and Other Plastic and PVC Components. As for consumer products, notably over 100 total Notices were sent alleging that the Di(2-ethylhexyl) phthalate (“DEHP”) (the most common type of phthalate plasticizer) content in wheel chair components, and other plastic and PVC components in a variety of consumer products, required a warning.

What Should Food, Consumer Products and Manufacturing Businesses Do Next?

Those in the food, consumer products and manufacturing industries are well served to monitor Prop. 65 60-Day Notice trends and evaluate their California sales for products that could be a challenged by Prop. 65 Plaintiffs in the future. Targeted industries can be proactive in understanding the chemical contents of their products and working to comply with the parameters of the Prop. 65 law. Proactive knowledge, product management and compliance with Prop. 65 will avoid and mitigate Prop. 65 claims and ultimately increase sales in California without the specter of an unexpected Prop. 65 lawsuit.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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