In February, Proposition 65 (“Prop. 65”) plaintiff groups issued, per normal, just around three hundred (300) total 60-Day Notices of Violation (“Notices”)—two hundred and ninety-six (296) Notices to be exact—and some of which amended Notices from prior months to name additional parties and add other products to the Notices.
Plaintiff groups continue to allege that various chemicals in foods and consumer products require Prop. 65 warning labels because the use or consumption of the products expose California consumers to chemicals in quantities that could cause cancer or reproductive harm. Notably, plastics and snack foods continue to be popular products on which these allegations are based.
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 an 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, and phthalates (Di(2-ethylhexyl) phthalate (“DEHP”), diisononyl phthalate (“DINP”) and Di-n-butyl phthalate (“DBP”)). A discussion of Notice trends in February is provided below.
60-Day Notices for Food
In February of 2021, just short of one hundred (100) total Notices alleged that various food products and dietary supplements required Prop. 65 warning labels. Food Notices in February largely centered on acrylamide and metals allegations, with a handful of Notices alleging that the furan content of pretzels and other roasted and processed food products required warning labels. Examples of noteworthy categories of food Notices in February are as follows.
60-Day Notices for Consumer Products
The majority of Notices in February 2021 were issued for consumer products, and specifically targeted at alleged phthalataes (DEHP, DINP and DBP) in plastic products. Lead in a variety of products, including tools and hardware and Bisphenol A (“BPA”) Notices rounded out the Notices in February relating to consumer products. Examples of common trends in consumer product Notices in February include:
What Should Food, Consumer Product, and Manufacturing Businesses Do Next?
Prop. 65 trends subtly evolve each month. The trends in Notices ebb and flow, and are driven in large part by the interests of particular plaintiff groups in certain chemicals and products, and the concentrations of certain chemicals in easily accessible products. California businesses should monitor Prop. 65 notices and trends and use the Prop. 65 warning language on California products to avoid receiving a Notice of Violation, and to avoid the threat of litigation in California state court.
Prop. 65 is a very real risk issue for companies selling products in California, particularly if the products contain the common Prop. 65 chemicals we discuss here. In addition to the costs of compliance and labeling associated with the regulation, a Prop. 65 dispute 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, understanding potential exposure and consumption of the public to the alleged chemicals in the products at issue. For retail companies down the supply chain, implementing contractual indemnity language is essential to ensuring 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.