In October 2021, citizen plaintiff groups issued more than two hundred fifty (250) new 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 some withdrawals of existing Notices. As we describe below, October of 2021 stood out in the Prop. 65 trend space because of the uptick of claims of alleged metals in different types of foods and dietary supplements. While claims that alleged acrylamide in food products decreased, metals claims for food products increased. Likewise, claims regarding alleged phthalates in consumer products remained strong.
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.
60-Day Notices for Food
In October, 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. While acrylamide Notices decreased, claims of heavy metal content in foods increased. A discussion of these trends is below.
- Acrylamide in Crispy and Roasted Foods. October 2021 was a slow month for acrylamide Notices. Plaintiff citizen enforcers sent only two new Notices; the remainder of the Notices were amendments to clarify businesses in the supply chain and products at issue in the Notices. New Notices related to popped chips and popcorn; amended Notices related to various types of chips, crackers, nuts, tortilla chips, sesame sticks, and wafer cookies.
- Metals in Seaweed & Seafood. Notices for alleged heavy metals in seaweed and seafood were substantial in number in October. More than twenty (20) claims were made for different products including nori (a type of dried edible seaweed) and various other seaweed products, shrimp products, swordfish, and mussels.
- Metals in Dietary Supplements. October 2021 was also a big month for dietary supplement Notices. Twenty-six (26) Notices alleged that lead, cadmium, and mercury in various dietary supplements required a Prop. 65 warning label.
- Metals in Spices. The number of Notices in October 2021 alleging that metals in various spices, including paprika, turmeric powder, five-spice powder, ginger paste, curry paste, tomato paste, and date paste, required a Prop. 65 warning label were also numerous and greater than in prior months. Citizen plaintiff enforcers sent over fifteen (15) total Notices alleging that various spices contained metals in levels that necessitated a Prop. 65 warning label.
- Metals in Other Various Foods Including Fruits & Vegetables and Pasta. More than fifty (50) additional Notices for a variety of other foods including various types of fruits and vegetables, snack mix, snack bars, tortillas, pastas, and other food products alleged that warning labels were required for alleged metals in the foods.
60-Day Notices for Consumer Products
As has been the trend in consumer products in Prop. 65 for a number of years now, consumer product Notices in October 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 eighty (80) Notices in October for alleged phthalates in consumer products, including the usual cosmetics bag/pouches and other miscellaneous pliable plastic items such as a clothesline, drumstick grips, grips on a boat hook, and eyelash curlers.
- Lead in Ceramics and Glassware. More than ten (10) Notices alleged that lead in consumer products, including mugs, glassware, ceramic spoons, and a sewing case required a Prop. 65 warning label.
- BPA in Wildlife/Hunting Calls, Phone Cases and Socks. Ten (10) Notices in October also alleged that various consumer products, including socks, wildlife/hunting calls, and phone cases contained BPA and therefore required a Prop. 65 warning label.
60-Day Notices for Personal Care Products
Finally, an amendment to an existing Prop. 65 Notice was issued for alleged PFOA, or Perfluorooctanoic Acid, in various personal care products. PFOA regulation and litigation have been a significant trend in the worldwide chemical regulatory space in the past several years. It’s noteworthy that PFOA claims are also arising in the Prop. 65 context.
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, 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.
 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.