COVID-19, shelter-in-place orders and California court closures did not slow Proposition 65 plaintiff groups down in March. Plaintiff groups sent more Proposition 65 (“Prop. 65”) Notices of Violations (“Notices”) in March than in previous months (348 Notices in March, compared to 249 Notices during the month of February and 245 Notices in the month of January), many of which alleged violations of Prop. 65 as related to food products. March 2020 Notices continued to allege arsenic, cadmium and lead in dried seaweed and seafood required a Prop. 65 warning, as well as that acrylamide in toasted or roasted products such as corn and chips, and mercury and lead in canned goods also required a Prop. 65 warning. March 2020 also marked a return of Notices related to carbon monoxide in fire starting products. Unique Notices alleging that androstenedione in muscle supplements required a Prop. 65 warning were also sent, as we discuss below.
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. Trends in March Prop. 65 Notices include:
- Lead, Arsenic and Cadmium in Seaweed and Seafood Products. Prop. 65 plaintiff groups continued to target heavy metals in seaweed and other seafood products. 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 and 3 Notices for shrimp products. In March, plaintiff groups continued this upward trend and issued 45 Notices for seaweed and other seafood products such as dried krill, dried anchovies, shredded squid, and dried crab snacks.
- Acrylamide in Toasted and Roasted Products. Plaintiff groups also issued Prop. 65 Notices for acrylamide in toasted and roasted products such as corn, chips, crackers, and cookies. In March, plaintiff groups issued approximately 16 Notices alleging that a warning is required for acrylamide in toasted and roasted food 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.
- Mercury and Lead in Canned Goods. March 2020 Notices also included notices alleging that a warning was required for mercury and lead in canned food goods. In March, Prop. 65 plaintiffs issued at least 50 such Notices for canned goods allegedly containing mercury, lead and/or lead compounds including for canned beans, fruit, and vegetables.
- Carbon Monoxide in Fire Starting Products. A round of Notices for carbon monoxide in fire starting products was also sent in March. Last year, 30 such Notices were sent by plaintiff groups. The notices allege that fire starting products emit carbon monoxide and thus require a Prop. 65 warning.
- Androstenedione in Muscle Supplements. Lastly, 11 new and novel Notices were issued in March for androstenedione in various muscle supplements. Androstenedione is a type of steroid hormone that is used to increase the production of testosterone in the body to help repair muscle. March Notices related to androstenedione in muscle supplements could be the start of a new trend in Prop. 65 Notices to monitor in 2020, particularly for nutritional supplement manufacturers.
COVID-19, California’s “shelter-in-place” order and California court closures are unprecedented in the American legal landscape and in the Prop. 65 world. This confluence of circumstances has created a shifting risk analysis for retailers and manufacturers subject to the regulation and its warning requirements. On the one hand, manufacturers and retailers selling products online, and products for sale in brick-and-mortar stores that are open as “essential” businesses (grocery stores, hardware stores) are seeing an uptick in Prop. 65 Notices. On the other hand, California courts are closed and Plaintiff groups cannot file lawsuits regarding Notices that are past 60 days. Manufacturers and retailers receiving Notices during this “suspended animation” can use the extra time to shore up their Prop. 65 procedures and risk analyses, evaluate the possible settlement of the Notices they receive, and ready themselves to defend these claims when the Courts re-open and Plaintiff groups begin, once again, to file litigation alleging a “failure to warn.”