In May 2021, Proposition 65 (“Prop. 65”) citizen plaintiff groups were active once again. More specifically, plaintiff groups filed two hundred ninety-eight (298) Prop. 65 Notices of Violation (“Notices”), which was nearly double the amount of Notices plaintiff groups issued in April 2021 (153 Notices). Most of the Notices from May alleged new Prop. 65 claims against new defendants. Interestingly, a portion of this activity also related to the issuance and withdrawal of Notices alleging that certain tools (power tools, sandpaper, saws) that generate “wood dust” required a Prop. 65 warning. In addition, plaintiff groups targeted personal care products including makeup and soaps alleging that those products contain asbestos and cocamide diethanolamine.
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”)).
For the new Notices sent in May, 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. A more detailed summary of Notice trends in May is below.
60-Day Notices for Food
The majority of food Notices in May related to allegations of heavy metals—primarily lead—in different foods and dietary supplements. Historically, citizen plaintiff groups have routinely targeted acrylamide in certain baked and toasted foods. However, there has been a recent reduction in acrylamide activity attributable to the uncertainty in acrylamide law. On March 30, 2021, 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. (See Cal. Chamber of Commerce v. Becerra, Case No. 2:19-cv-02019 (E.D. Cal. March 30, 2021).) The case has been appealed to the Ninth Circuit Court of Appeals. Examples of other noteworthy categories of food Notices from May are as follows:
60-Day Notices for Consumer Products
Again, the majority of consumer product Notices in May related to alleged phthalates (DEHP, DINP and DBP) in largely pliable plastic products. A new trend in Notices related to allegations that power tools and hand tools that cause the release of “wood dust” required a Prop. 65 warning. Wood dust is on the Prop. 65 list as causing cancer. Additional categories of Notices related to alleged lead in ceramics and other consumer products. Examples of trends in consumer product notices in May are as follows:
60-Day Notices for Personal Care Products
In May, citizen plaintiff groups renewed their interest in personal care products. As described below, plaintiff groups sent a handful of Notices alleging asbestos in eye shadow and cocamide diethanolamine in soap.
What Should Food, Consumer Product, Personal Care and Manufacturing Businesses Do Next?
Prop. 65 trends change each month. The trends in Notices depend on the state of the law at the time the Notice is sent, corresponding interests of particular plaintiff groups, as well as the concentrations of chemicals in easily accessible products and the prior successes 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 try to avoid the threat of litigation in California state court. In particular, food companies with products containing acrylamide should monitor the status of the California litigation noted above relating to cancer warning labels for acrylamide in order to assess their risk and the likelihood of receiving a Notice in the future.
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 attorney’s fees as well.
Complying with Prop. 65 includes testing products for common Prop. 65 chemicals and understanding potential public exposure to the chemical at issue. Implementing contractual indemnity language 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.