In September 2021, citizen plaintiff groups issued two hundred fifty (250) Proposition 65 (“Prop. 65”) Notices of Violation (“Notices”), including some amended Notices to add additional products and/or new alleged “violators” of the regulation, as well as several withdrawals of existing Notices. As has been the trend for many months now, citizen plaintiff enforcers focused Notice activity on certain groups of consumer and food products. For consumer products, the majority of the Notices related to alleged phthalates in plastic bags, pouches, and tools, and alleged lead in products including ceramics. For foods, product categories that continued to be noticed included alleged acrylamide in browned, roasted snack foods, and alleged heavy metals in a variety of foods including seaweed, seafood, dried fruits, chips, and pastas.

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 and consumer 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.

60-Day Notices for Food

Just less than half of the total Notices issued in September 2021 related to food and beverage products, including dietary supplements. Noteworthy categories of food Notices from September are as follows:

• Acrylamide in Crispy and Roasted Foods.[1] Citizen plaintiff groups sent over twenty-five (25) acrylamide Notices in September for products including cookies, plantain chips, potato chips, breadsticks, and almond butter.
• Metals in Seaweed & Seafood.  Notices for alleged heavy metals in seaweed and seafood continued in September 2021. At least ten (10) claims were made for ten different products including kelp, seaweed, clams, and mussels, which alleged that lead and heavy metals in these products required a Prop. 65 warning label.
• Metals in Dietary Supplements. Fourteen (14) Notices alleged that lead, cadmium, and mercury in dietary supplements required a warning label.
• Lead in Health Foods and Protein Bars. More than twelve (12) Notices alleged that lead in protein bars, flax seed, fenugreek, psyllium husk powder, green superfoods powder, protein powder, and beet powder required a Prop. 65 warning label.
• Metals in Other Various Foods Including Fruits & Vegetables, Spices, Pasta, Ramen, Crackers, and Snack Bars. More than fifty (50) Notices in a variety of other foods including various types of fruits and vegetables, crackers, snack mix, stuffed grape leaves, and other food products alleged that warning labels were required for metals in the foods.

60-Day Notices for Consumer Products

Once again, consumer product Notices in September related to alleged phthalates (DEHP, DINP and DBP) in largely pliable plastic products and alleged lead in ceramics and hardware. Examples are as follows:

• Phthalates (DEHP, DINP and DBP) in Plastic Products and Components. Plaintiff groups issued close to one hundred (100) Notices in September for alleged phthalates in consumer products, including the usual cosmetics bag/pouches and other miscellaneous pliable plastic items such as children’s headphones, plastic sandals, an apron, and a pillow.
• Lead in Ceramics and Metal Pipe Fittings. More than twenty (20) Notices alleged that lead in consumer products, including mugs, glassware, fishing weights, and solder wire required a Prop. 65 warning label.

60-Day Notices for Personal Care Products

Prop. 65 claims for personal care products in September again tapered off from the more numerous claims earlier in the year, and were limited to the following:

• Diethanolamine in Soaps, Cosmetics and Sanitizers. Four (4) Notices alleged that diethanolamine in sanitizer, mascara, lotions and soaps required a Prop. 65 warning 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 particular plaintiff groups and their previous successes, as well as the concentrations of chemicals in easily accessible products. In September for example, the number of acrylamide product Notices remained constant, as the litigation regarding cancer warning labels for acrylamide in food products has not yet resolved.

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. In particular, food companies selling products containing acrylamide should monitor the status of the acrylamide litigation to assess their risk and the likelihood of receiving a Notice in the future.

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 provides discussion of the Prop. 65 acrylamide litigation and Ninth Circuit appeal at: https://oag.ca.gov/prop65.

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