In March, Proposition 65 (“Prop. 65”) citizen plaintiff groups once again sent just over three hundred (300) total 60-Day Notices of Violation (“Notices”). Plaintiff groups issued the most amount of Notices for phthalates in plastic consumer products (122 total Notices), followed by lead (116 in total) for both consumer products and foods. Plaintiff groups continued to allege that various chemicals in foods and consumer 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.
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”)). A discussion of Notice trends in March is provided below.
60-Day Notices for Food
The majority of food Notices related to allegations of acrylamide and lead. Examples of noteworthy categories of food Notices are as follows.
Notably, however, on March 30, 2021, after these Notices were sent, the U.S. District Court for the Eastern District of California preliminarily enjoined any person from filing new lawsuits seeking cancer warnings for acrylamide on food and beverage products sold in California. The ruling thus ties the hands of bounty hunter plaintiffs that have sent, or planned to send, Notices alleging that food products contained acrylamide, and therefore required a Prop. 65 warning label. The ruling prohibits the filing of new lawsuits based on these allegations.
60-Day Notices for Consumer Products
Once again, the majority of Notices in March for any single type of chemical or product related to alleged phthalataes (DEHP, DINP and DBP) in plastic products. Examples of trends in consumer product notices in March include:
What Should Food, Consumer Product, and Manufacturing Businesses Do Next?
Prop. 65 trends evolve, change, and shift each month. The trends in Notices depend on the interests of particular plaintiff groups in certain chemicals and products, the concentrations of certain chemicals in easily accessible products, and on the prior success of citizen plaintiffs in enforcing Prop. 65 in a given area. California businesses should monitor Prop. 65 notices and trends, use the Prop. 65 warning language on California products to avoid receiving a Notice of Violation when necessary, and to try and avoid the threat of litigation in California state court.
Prop. 65 is a substantial 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 and understanding potential exposure of the public to the chemical at issue. Implementing contractual indemnity language is essential 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.