As compared to prior months, the start of the new year was relatively “slow” in terms of the number of Proposition (“Prop. 65”) Notices of Violation (“Notices”) that citizen plaintiff groups issued alleging new Prop. 65 violations. It is not uncommon for the total number of Notices issued each month to exceed well over two or even three hundred. However, in January 2022, citizen plaintiff groups issued one hundred eighty-eight (188) total Notices. These Notices related to the common types of food, consumer, and personal care products that citizen plaintiff groups typically target. While 188 Notices is still a significant number of alleged violations, there will likely be even more Notices issued in the next several months.

Prop. 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, requires “clear and reasonable warnings” on products sold in California if use of the products causes exposure to chemicals on the Prop. 65 List. Prop. 65 also gives interested citizen plaintiffs a private right of action to enforce these claims and recover their attorneys’ fees if they are successful. Common chemicals in Notices that are typically targeted include lead, acrylamide, cadmium, arsenic, mercury, and phthalates (Di(2-ethylhexyl)), phthalate (“DEHP”), diisononyl phthalate (“DINP”), and Di-n-butyl phthalate (“DBP”).

In the Notices described below, plaintiff groups allege that various chemicals in food, consumer products, and personal care products require Prop. 65 warning labels because the products’ use or consumption exposes California consumers to chemicals in quantities that could cause cancer or reproductive harm. Lead and other heavy metals remained a popular target of citizen enforcers in January, 2022.

60-Day Notices for Food

In January, the majority of Notices sent by plaintiff citizen enforcers related to allegations that alleged metals in dietary supplements and different types of foods required Prop. 65 warning labels. An overview of these trends is below.

• Acrylamide in Crispy and Roasted Foods.[1] January 2022 was a relatively slow month for acrylamide Notices. Plaintiff citizen enforcers sent eleven (11) new Notices for products such as biscuits, wafers, biscotti, cookies, and different kinds of chips (tortilla, potato, plantains) alleging that acrylamide in the products required a Prop. 65 warning label.
• Metals in Seaweed & Seafood. Notices for alleged heavy metals (cadmium, lead) in seaweed and seafood remained a common target in January. Seven (7) claims were made for different products including nori (a type of dried edible seaweed) and various other seaweed products such as sardines and scallops.
• Metals in Dietary Supplements. Likewise, dietary supplements remained another common target for January 2022. Nine (9) Notices alleged that lead, cadmium, and mercury in various dietary supplements required a Prop. 65 warning label.
• Metals in Spices. Although spices have become a recurring focus of plaintiff groups, there was a slight decrease in the number of Notices last month. Nonetheless, citizen plaintiff enforcers sent five (5) Notices alleging that various spices such as curry powder and sumac contained metals in levels that necessitated a Prop. 65 warning label.
• Metals in Other Various Foods Including Fruits & Vegetables and Pasta. More than forty-five (45) additional Notices for a variety of other foods including various types of fruits and vegetables, snack foods, snack bars, pastas, chocolate, and other food products alleged that warning labels were required for alleged metals (lead, cadmium) in the foods.

60-Day Notices for Consumer Products

Consumer product Notices in January 2022 once again related to alleged phthalates (DEHP, DINP and DBP) in largely pliable plastic products and alleged lead in ceramics and hardware. Notices regarding alleged Bisphenol A (BPA) in certain types of consumer products were also significant. Examples of consumer products trends are as follows:

• Phthalates (DEHP, DINP and DBP) in Plastic Products and Components. Plaintiff groups issued more than fifty (50) Notices in January for alleged phthalates in consumer products, including the usual cosmetics bag/pouches and other miscellaneous pliable plastic items such as notebooks, dust covers, pillows, wallets, makeup brushes, pruners, electrical tape, and phone cases.
• Lead in Ceramics and Glassware. More than fifteen (15) Notices alleged that lead in consumer products, including mugs, glassware, and other ceramic products required a Prop. 65 warning label.
• BPA in Wildlife/Hunting Calls and Phone Cases. Over (15) Notices in January also alleged that various consumer products, including wildlife/hunting calls, phone cases, and face shields contained BPA and therefore required a Prop. 65 warning label.

60-Day Notices for Personal Care Products

Finally, there were several Notices for personal care products in January, including the following main categories of products:

• Diethanolamine and Coconut Oil Diethanolamine in Hair Products. Six (6) total Notices alleged that diethanolamine or coconut oil diethanolamine in hair gel, shampoo, and other shower gel products required a Prop. 65 warning label.
• Titanium Dioxide in Cosmetic Products. Five (5) Notices alleged that titanium dioxide in certain loose powder cosmetic products warranted a Prop 65 warning label. These specific Notices related to Notices already issued by the California Attorney General’s Office.
• Benzene in Antiperspirant. A plaintiffs group issued two (2) Notices alleging that benzene in antiperspirant aerosol spray warranted a Prop. 65 label.

What Should Food, Consumer Product, Personal Care, and Manufacturing Businesses Do Next?

Prop. 65 trends change each month according to the state of the law, interests of citizen plaintiff groups, as well as the concentrations of chemicals in easily accessible products. Companies doing significant business in California should monitor Prop. 65 notices and trends and use the Prop. 65 warning language on California products when required.

Prop. 65 is a substantial risk issue for companies selling products in California. Compliance and labeling is costly, as is a Prop. 65 dispute, which can subject a potential defendant to attorneys’ fees in both defending the claim and, if the claim is resolved in settlement, the plaintiff’s attorneys’ fees as well.

Complying with Prop. 65 includes testing products for common Prop. 65 chemicals and understanding potential exposure of the public to the chemical at issue. Implementing contractual indemnity language for those down the supply chain helps to ensure that products sold in California (either online or in brick-and-mortar stores) are adequately screened by upstream manufacturers, suppliers, and producers for Prop. 65 compliance. Prop. 65 liability most frequently rests with those up the supply chain. For those businesses, monitoring Prop. 65 trends and common claims is a key part of a successful compliance program.

[1] The issue of the acrylamide cancer warning label is presently being litigated in the Eastern District of California and Ninth Circuit Court of Appeals, in Cal. Chamber of Commerce v. Becerra, Case No. 2:19-cv-02019. The California Attorney General’s website discusses the Prop. 65 acrylamide litigation and Ninth Circuit appeal at: https://oag.ca.gov/prop65.

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