Two thousand twenty-one is off to a roaring start in California’s Proposition 65 (“Prop. 65”) world. Prop. 65 plaintiff groups issued two hundred thirty-seven (237) total 60-Day Notices of Violation (“Notices”), with a number of these Notices amending pre-existing Notices. Plaintiff groups 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.
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”)).
Two thousand twenty-one has proven, in its first month, to be no exception, with consumer product Notices for phthalates and food Notices for acrylamide and metals taking the lead in the numbers count. A discussion of Prop. 65 Notice trends is provided below.
60-Day Notices for Food
In the first month of 2021, over ninety (90) Notices alleged that food products and dietary supplements required Prop. 65 warning labels. Notably, in addition to the ubiquitous acrylamide and dietary supplement claims that have abounded in the last several years, a number of Notices were issued regarding alleged metals in fresh vegetables and seafoods, which have ebbed and flowed over time. These categories of Notices are described below.
60-Day Notices for Consumer Product
Consumer product Notices in January of 2021 were fairly consistent with trends in 2020 and before, and centered largely on alleged phthalataes (DEHP, DINP and DBP) in a variety of products, along with alleged lead in ceramics, glassware and other housewares. Bisphenol A (“BPA”) Notices also picked up steam in numbers in January. Common trends in consumer product Notices in January were:
What Should Food, Consumer Product, and Manufacturing Businesses Do Next?
Prop. 65 continues to be a significant 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.
Companies selling products in California, and manufacturing or distributing products for sale in California, are subject to Prop. 65’s warning requirements. 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.
Complying with Prop. 65 includes testing products for common Prop. 65 chemicals, understanding potential exposure and consumption, and undertaking an exposure assessment. 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.