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 recently reported in our 2019 Prop. 65 Year-in-Review, 2019 was another creative year for Prop. 65 plaintiffs that alleged violations of the law based on various & sundry chemical exposures, including acrylamide in ice cream cones, cadmium and lead in seaweed, furfuryl alcohol in hamburger buns, and chromium in leather work gloves and baby powder. In this month’s post, we highlight claims and trends in Prop. 65 Notice of Violations (“Notices”) letters that Prop. 65 plaintiff groups issued in January 2020. January 2020 Notices included another uptick in allegations for arsenic, cadmium and lead in food products such as dried seaweed and seafood, claims for acrylamide in toasted corn, as well as a novel allegation relating to cadmium in chopped/cut spinach.
In January 2020, Prop. 65 plaintiffs sent 245 60-Day Notices. Highlights and trends in January 2020 Prop. 65 claims include:
- Lead, DEHP, and DINP as Common Chemicals in Prop. 65 Notices. January 2020 followed the usual trend in that Lead (and related compounds), Di(2-ethylhexyl) phthalate (“DEHP”) (the most common type of phthalate plasticizer), and Diisononyl phthalate (“DINP”) (another type of phthalate) remained three of the most common Prop. 65 chemicals that are the subject of the vast majority of Prop. 65 Notices. These claims allege that certain metal products contain lead and therefore require a warning, and that certain pliable plastic products contain DEHP and/or DINP and also require a warning.
- DEHP and DINP in Plastic Bags. 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.
- Arsenic, Cadmium and Lead in Seaweed and Seafood Products. In 2019, plaintiff groups issued over three dozen Prop. 65 Notices for cadmium in seaweed and various dietary supplements. In January 2020 alone, plaintiffs issued 14 Notices for various seaweed and seafood products including dried seaweed, dried shrimp, dried anchovies, and canned squid. These Notices alleged that seaweed and seafood contain arsenic, cadmium and/or lead (and related compounds) and therefore require a Prop. 65 warning.
- Acrylamide in Toasted Corn. In January 2020, plaintiff groups issued three Prop. 65 Notices for acrylamide in toasted/roasted corn 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.
- Cadmium in Spinach. Finally, one Prop. 65 Notice was issued for cadmium in chopped/cut spinach products. 65 regulations provide an exemption to exposure to chemicals if the person responsible for the exposure can demonstrate that the chemical is naturally occurring in the food. See 27 Cal. Code Regs. § 25501. It is not uncommon for certain agricultural products to contain chemicals such as lead and cadmium, which are found in soil, and absorbed by the plant as it grows.
This list showcases trends within the Prop. 65 world in January 2020, and provides a high level overview for consumer product manufacturers, distributors, and retailers on key and emerging Prop. 65 issues.