Proposition 65 Notices of the Month – February 2020: Lead, Arsenic and Cadmium in Seaweed, Shrimp & Dietary Supplements, New Plaintiff Group Targets Baked Goods and Roasted Nut Products

Downey Brand LLP

California’s Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986 – or “Prop. 65” – 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. As we discussed in our last update, Prop. 65 Notice of Violations (“Notices”) in January started the year with a bang, particularly for the food industry. January 2020 Notices contained allegations of arsenic, cadmium and lead in food products such as dried seaweed and seafood, acrylamide in toasted corn, and a novel allegation relating to cadmium in chopped/cut spinach.

In this month’s post, we highlight claims and trends in Notice letters issued by Prop. 65 plaintiff groups in February 2020. February 2020 Notices included another batch of allegations related to arsenic, cadmium and lead in food products, including baked goods and dried seaweed, and additional notices for acrylamide in roasted nuts and toasted corn products by a new plaintiff group. Prop. 65 plaintiffs sent 249 Notices throughout the month. Highlights and trends in February Prop. 65 claims include:

  • Lead, DEHP, and DINP as Common Chemicals in Prop. 65 Notices. February 2020 proceeded as usual with the majority of Notices alleging lead (and related compounds), Di(2-ethylhexyl) phthalate (“DEHP”) (the most common type of phthalate plasticizer), and Diisononyl phthalate (“DINP”) (another type of phthalate) in consumer products, including hardware, fittings and valves.
  • Lead, Arsenic and Cadmium in Seaweed, Shrimp and Dietary Supplements. Prop. 65 plaintiff groups continued to issue notices for heavy metals in seaweed, seafood and in dietary supplements at a significant rate in February. In January 2020, plaintiffs issued 14 Notices for various seaweed and seafood products including dried seaweed, dried shrimp, dried anchovies, and canned squid. In February 2020, plaintiff groups issued 20 Prop. 65 Notices for lead, arsenic and cadmium in dried/roasted seaweed products, 3 notices for shrimp products (alleging that the products contained lead and arsenic) and 12 Prop. 65 Notices for lead and cadmium in dietary supplements.
  • Lead, Acrylamide and Mercury in Baked Goods. February 2020 also included an uptick in Prop. 65 Notices targeting baked goods. Plaintiff groups issued 27 Prop. 65 Notices for lead, acrylamide and mercury in bread products and tortillas. The vast majority of these Prop. 65 Notices were also issued by a new plaintiff group known as “Key Sciences,” which began issuing Prop. 65 Notices at the start of this year. Since January 2020, Key Sciences has issued 59 Prop. 65 Notices.
  • Acrylamide in Roasted Nuts and Toasted Corn. Like last month, plaintiff groups also issued a round of Prop. 65 Notices for acrylamide in roasted nuts and toasted corn products. Again, Key Sciences led this effort by issuing over 20 Prop. 65 Notices targeting these products. Acrylamide forms as part of a chemical reaction, which contributes to the aroma, taste, and color of cooked foods and can occur during frying, baking, or roasting.

This list showcases trends within the Prop. 65 world in February 2020, and provides a high level overview for consumer product manufacturers, distributors, and retailers on emerging Prop. 65 issues.

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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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