August 2020 marked the end of COVID-19 summer, back-to-Zoom-school for families, and in the Proposition 65 (“Prop. 65”) world, a continued shift in trends of Prop. 65 claims.  In August, citizen enforcers sent just under 300 60-Day Notices of Violation (“Notices”) both making new claims and correcting and supplementing prior claims.  The Notices challenge the chemical content of certain personal care products, food, and consumer products, and allege that the products expose California consumers to chemicals in quantities that could cause cancer or reproductive harm.  While Notices for pliable plastic consumer products, including bags and purses, remained a consistent trend in August, other Notice trends changed, particularly as to food and personal care products.  New and different foods and chemicals were noticed, and a number of Notices for personal care products were sent that were new and different from Notices in prior months.

Prop. 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires “clear and reasonable warnings” on consumer 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 in so doing.  Common chemicals that citizen plaintiff groups target typically include lead, acrylamide, cadmium, arsenic and phthalates (Di(2-ethylhexyl) phthalate (“DEHP”), diisononyl phthalate (“DINP”), and Di-n-butyl phthalate (“DBP”)).  Two additional chemicals, furan and diethanolamine, were also alleged to be present in harmful levels in products sold in California in the August Notices.

60-Day Notices for Diethanolamine in Personal Care Products 

Personal care products have not been the subject of Notices during the COVID-19 period, and this changed in August.  For the first time in several months, ten (10) Notices alleged that certain personal care products, including shave gel, bath gel, and mascara contained the chemical diethanolamine in harmful levels for California consumers and therefore these products required a Prop. 65 warning.

Diethanolamine is a chemical that is formulated into soaps and surfactants used in liquid laundry and dishwashing detergents, cosmetics, shampoos, and hair conditioners.  Diethanolamine can also be used to make cosmetics or personal care products creamy or sudsy.  It is currently on the Prop. 65 list because the State of California has determined that exposure to diethanolamine can cause cancer.

60-Day Notices for Food

August Notices for food and dietary supplements also took a different turn from prior months.  While Notices for dietary supplements continued with 15 total Notices alleging lead and cadmium in dietary supplements, other Notice trends changed.

• Acrylamide in a Variety of Products Including Crackers. As to acrylamide, over 25 Notices were sent (with some re-notices from prior months) for a variety of food products and predominantly for different types of crackers and chips.  This is a lower number than in prior months, and with a lower diversity in food products.
• Metals in Seaweed and Seafood. Just under ten (10) Notices were sent (with some re-notices from prior months) alleging metals in seaweed and seafood, a sharp decrease in high seaweed and seafood activity from prior months.
• Furan in Food Products. Two Notices were sent alleging furan in food products.  Furan is a chemical that is suspected to form in food during traditional heat treatment techniques, such as cooking, jarring, and canning.  Over the last several months, furan has been gathering momentum in food Notices.
• Metals in Leafy Green Vegetables, Spinach Powder and Mushroom Products. Most notably, eight (8) total Notices were sent alleging metals in leafy green vegetables,  spinach powder and mushroom products.  This is a trend that has been developing in food Notices over the last few months, and will be interesting to watch in light of the naturally occurring exemption that exists in the Prop. 65 warning law.

60-Day Notices for Consumer Products

More Notices were sent for consumer products in August than for foods or personal care products.  Trends in consumer product Notices in August included the following:

• Phthalates (DEHP, DINP and DBP) in Plastic Bags & Pouches and PVC Plastic Products. Much like the month of July, over one hundred (100) Notices were sent in August alleging that plastic bags and pouches and other plastic consumer products including PVC products and electrical tape, contain phthalates and required a warning.
• Lead in Fishing Weights. Citizen enforcers sent twenty-seven (27) Notices for fishing weight and tackle boxes, alleging that the lead content in the fishing weights and tackle required a Prop. 65 warning.
• Lead in Ceramics and Glass. Lead in ceramics and glass allegations are a longstanding staple of Prop. 65 citizen enforcer claims.  In August, citizen enforcers sent ten (10) total Notices for lead in ceramic and glass mugs and glasses.
• Formaldehyde in Bamboo Pillowcases. One of the more creative Notices in August was for formaldehyde in bamboo pillowcases.  Formaldehyde allegations have historically come up in furniture and other home products and will be a trend to monitor in bamboo products in the coming months.

What Should Personal Care, Food, Consumer Products and Manufacturing Businesses Do Next?

Personal care, food, consumer product, and manufacturing companies selling products in California are subject to Prop. 65’s warning requirements.  In this capacity, companies should monitor Prop. 65 Notices and trends and comply with the law to avoid receiving a Notice of Violation, and to avoid the threat of litigation in California State Court.

The State of California hosts a website describing the regulation here: https://oehha.ca.gov/proposition-65.  Complying with Prop. 65 includes understanding California sales volume, testing products for common Prop. 65 chemicals, understanding exposure and consumption, and feeling comfortable with the results of an exposure assessment and whether safe harbor levels are exceeded and a warning label is required.

As we discussed last month, a proposed acrylamide regulation, if implemented, will give food producers certainty as to allowable levels of acrylamide in certain foods (almonds, breads, cookies, crackers, potato products/chips, prune juice, and waffles).  A copy of the proposed regulation can be found here.  For products that do not have codified exemptions in the Prop. 65 law, companies doing business in California are well advised to understand chemicals in their products and the need for a warning, and/or documenting that safe harbor levels are not exceeded and a warning is not required.

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