Twenty-twenty was an unprecedented year of crisis throughout the world with the onset of the COVID-19 pandemic. Stay-at-home orders, quarantines, remote work, and Zoom-school did not slowdown Proposition 65 plaintiffs, however. Throughout the course of the year, citizen plaintiff groups sent over 3,500 Notices of Violation (“Notices”) to companies doing business in California up and down the supply chain—from manufacturers, distributors, and retailers, to everyone else in between—alleging that products sold in California required the all too familiar “Proposition 65 warning label” because of the alleged presence of chemicals in the products.
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 sold in California if use of the products causes an exposure to chemicals on the Prop. 65 List. Prop. 65 continues to have a significant impact on California consumer product manufacturers, distributors, and retailers, in large part because of active “bounty hunter” plaintiffs that allege violations of the law based on chemical exposures. These allegations have evolved over the course of the regulation, and have become quite creative, reaching far above and beyond the traditional Prop. 65 claim that products contain lead, and thus require a standard warning label.
This article provides a re-cap of the types of claims made by citizen plaintiff enforcers in the past year, and is a road map of trends that California businesses can expect to see in 2021.
Consumer product Prop. 65 claims have historically related to the presence of alleged lead and plasticizers. These types of claims were the greatest in number in 2020, as was the case in 2019. As detailed below, several novel claims for certain chemicals in consumer products also began to emerge in 2020.
- Lead Consumer Products. Lead (and related compounds) remains a common Prop. 65 chemical target. The types of consumer products that allegedly contained lead in 2020, and therefore required a warning, included hardware products, fishing tackle, ceramics and glass.
- DEHP and DINP in Plastic Bags and Cases and Vinyl Products. Similarly, plaintiffs continued to target plastic bags and vinyl cases containing phthalate plasticizers. These claims allege that all sorts of bags and vinyl products containing DEHP and/or DINP require warnings, including clutch purses, backpacks, cosmetic cases, and travel kits.
- Carbon Monoxide and Soot in Fire Starting Products, Grills and Fire Pits. Notices throughout the year alleged that carbon monoxide and soot in fire starting products, including fire wood and fire starting kits, grills and fire pits necessitated a Prop. 65 warning label.
- Formaldehyde in Bamboo Pillowcases & Sheet Sets. One of the more creative types of Notices in 2020 was for formaldehyde in bamboo sheet sets. Formaldehyde allegations have historically come up in furniture and other home products and will be a trend to monitor in bamboo products in 2021.
- Hexavalent Chromium in Leather Gloves. Plaintiffs sent numerous Notices alleging that hexavalent chromium in leather gloves required a warning.
In recent years, Prop. 65 Notices relating to food products have grown in number. Typically, these Notices allege that acrylamide in roasted foods and in snack foods require a warning label on the products. As demonstrated in the list below, acrylamide claims continued in 2020, other types of Notice claims related to other types of foods have emerged, and allegations regarding various metals in food products have become common over the course of the year.
- Acrylamide in Toasted and Roasted Products. Plaintiff groups sent hundreds of Notices throughout 2020 alleging that acrylamide in toasted and roasted products such as corn, chips, cereals, crackers, cookies, waffles, pretzels, crackers, tortillas, tostadas, nut products, molasses, bread, and popcorn required warning labels. 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.
- Lead, Arsenic and Cadmium in Seaweed and Seafood Products. Plaintiff groups continued to target heavy metals in seaweed and other seafood products. Plaintiff groups alleged that over 70 different seafood products (clams, cuttlefish, shrimp, snails, fish balls, calamari, squid, eel, oysters, and octopus) contained heavy metals and thus required a Prop. 65 warning.
- Mercury and Lead in Canned Goods. Twenty-twenty Notices also included allegations that a warning was required for mercury and lead in canned foods, including for canned beans, fruit, and vegetables.
- Metals, Including Cadmium, in Leafy Green Vegetables, Spinach Powder and Mushroom Products. Notices were sent throughout 2020 alleging that metals in leafy green vegetables (spinach and kale), spinach powder and mushroom products necessitated a Prop. 65 warning label.
- Acrylamide and Lead in Baby Food and Vegetable/Fruit Puree Pouches and Acrylamide in Teething Wafers. Plaintiff groups sent Notices alleging that baby food and vegetable/fruit puree products served in pouches contained acrylamide and lead and thus required a Prop. 65 warning label. Likewise, plaintiff groups issued Notices alleging that teething wafers contained acrylamide and required a Prop. 65 warning, and similar Notices were sent alleging the same for baby cookies.
- Bisphenol A (“BPA”) In Canned Goods and Baby/Toddler Foods. Plaintiff groups sent Notices alleging that food products, including canned fruits and vegetables and baby and toddler foods, contain BPA and therefore required a Prop. 65 warning.
- Furan in Food Products Including Pretzels. Notices were sent alleging furan in various food products. Furan is a chemical that is suspected of forming in food during traditional heat treatment techniques, such as cooking, jarring, and canning. Furan gathered momentum in food Notices throughout 2020.
Personal Care Products
Personal care products were also the subject of a growing number of Notices as 2020 progressed. These notices alleged that diethanolamine in soaps, shampoos and cosmetics and titanium dioxide in loose powder cosmetics required these products to have the standard Prop. 65 warning label.
What Should Personal Care, Food, Consumer Products and Manufacturing Businesses Do Next?
Companies selling products in California, and manufacturing or distributing products for sale in California should monitor these common Prop. 65 trends, and understand the products they sell in California, and whether their products contain any of the chemicals that are commonly targeted by citizen plaintiff “bounty hunter” groups.
Complying with Prop. 65 includes testing products for common Prop. 65 chemicals, understanding potential exposure and consumption, and undertaking exposure assessments. Retail companies down the supply chain can implement contractual indemnity language to ensure that products sold in California (either online or in brick-and-mortar stores) are adequately screened by upstream manufacturers and suppliers for Prop. 65 compliance.
Additionally, companies subject to Prop. 65 should monitor key regulatory amendments related to the law and understand how these amendments may implicate their compliance programs. In 2021, the State of California has proposed regulatory amendments that would change the language for on-product, “short form warnings,” as well as regulatory amendments that would provide levels below which concentrations of acrylamide do not represent an “exposure” that would require a Prop. 65 warning label.