October 2020 Proposition 65 (“Prop. 65”) claims were, once again, varied and abundant with respect to food and consumer product allegations. Plaintiff groups issued three hundred and thirty-three (333) total Prop. 65 60-Day Notices of Violation (“Notices”), the majority of which alleged that common chemicals in foods and consumer products (acrylamide in foods and phthalates in consumer products) required Prop. 65 warning labels because the use or consumption of these products exposed California consumers to chemicals in quantities that could cause cancer or reproductive harm. Notices for personal care products also alleged that diethaolamine in mascara, eye cream, and skin moisturizer necessitated a Prop. 65 warning. Many additional Notices with allegations relating to metals content (lead, cadmium and arsenic) permeated Notices relating to both consumer products and foods.
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”)). Bisphenol A (“BPA”), hexavalent chromium and formaldehyde were also alleged to be present in harmful levels in products sold in California in October.
60-Day Notices for Food
In October, over eighty (80) food Notices alleged that acrylamide in crispy browned foods required Prop. 65 warning labels. Notices alleging lead in dietary supplements, a variety of different types of foods (including canned goods), seafood and seaweed were also prevalent. Several Notices also alleged BPA in canned food goods. These categories of Notices are described below.
60-Day Notices for Consumer Products
Consumer product Notices in October were varied as to both products and chemicals, with the majority of the Notices, as in months past, alleging that products with plastic components containing phthalates required Prop. 65 warning labels. Other trends that have appeared from time to time in 2020 and are discussed below also occurred in the month of October.
60-Day Notices for Personal Care Products
In October, trends in Notices alleging Prop. 65 violations in various personal care products continued. Nine (9) Notices alleged that diethanolamine content in the following personal care products required a Prop. 65 warning: mascara, eye cream, and skin moisturizer. A separate Notice also alleged that the BPA content in nail polish required a warning.
What Should Personal Care, Food, Consumer Products and Manufacturing Businesses Do Next?
Companies selling products in California, and manufacturing or distributing products for sale in California, are subject to Prop. 65’s warning requirements. In this capacity, it is certainly worthwhile for California businesses to monitor Prop. 65 notices and trends and to use the Prop. 65 warning language on California products, where required, 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 feeling comfortable with the results of an exposure assessment. For those 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 compliances.