2021 Prop. 65 Roundup: More Than 3,000 Notices for the Usual Suspects Including Lead and Heavy Metals in Various Foods, Alleged Phthalates in Plastic Consumer Products, and Newer Trends Targeting Peppermint Extract, CBD Oil, and Sunscreen

January 2022

Proposition 65: Trends and Highlights in December 2021

Twenty twenty-one proved to be another busy year in the world of California’s Proposition 65 (“Prop. 65”). Despite the second full year of the COVID-19 pandemic, Prop. 65 citizen plaintiff groups remained highly active. Indeed, the number of 60-Day Notices of Violation (“Notices”) sent in 2021 closely tracked the number of Notices sent in 2020. Throughout the course of the year, citizen plaintiff groups sent more than 3,000 Notices to companies doing business in California. The impacted businesses ranged from large international companies to small family-owned businesses and related manufacturers, distributors, and retailers up and down the supply chain.

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 cause an exposure to chemicals on the Prop. 65 List, which is an inventory of chemicals that the State of California has concluded cause cancer or reproductive harm, when exposure to those chemicals occurs at certain levels.

Prop. 65 continues to have a significant impact on California food and beverage and consumer product businesses in large part because of active “bounty hunter” plaintiffs that allege violations of the law based on chemical exposures. These allegations have evolved over the course of the regulation, and plaintiff groups continue to be increasingly creative in their claims seeking warning labels on many products above and beyond traditional Prop. 65 claims alleging lead in glassware, as well as nuts, bolts, and other hardware store items.

This article provides a summary of the types of claims citizen plaintiff enforcers made in the past year, and provides a road map of trends that California businesses can expect to see in 2022.

Consumer Products

Historically, Prop. 65 consumer product claims have alleged that the presence of lead and/or plasticizers requires a Prop. 65 warning label. These types of claims reached a peak in 2019 and 2020. Along these lines, a number of trends regarding alleged Prop. 65 chemicals in consumer products were consistent throughout 2021. These trends are as follows:

  • Lead Consumer Products. Lead (and related compounds) remained a common Prop. 65 chemical target. The types of consumer products that allegedly contained lead in 2021 included hardware products, fishing tackle, ceramics, glassware, and other houseware products.
  • DEHP and DINP in Plastic Bags, Cases, and Vinyl Products. Similarly, plaintiffs continued to target plastic bags and vinyl cases containing phthalate plasticizers. These claims allege that all sorts of bags and vinyl products containing DEHP and/or DINP require warnings, including clutch purses, backpacks, cosmetic cases, and travel kits.  Other consumer products involving these types of claims included binoculars, notebook covers, and plastic handles.
  • BPA in Various Consumer Products. Several Notices also alleged that various consumer products including socks, wildlife/hunting calls, face shields, helmets (for hockey and lacrosse), coolers, and phone cases contained BPA and therefore required a Prop. 65 warning label.
  • Carbon Monoxide from Fire Starting Products. Finally, as in years past, citizen plaintiff groups targeted fire starting products for allegedly containing carbon monoxide.

Food Products

Prop. 65 Notices relating to food products have increased in number from year to year. Typically, these Notices allege that acrylamide and various metals are detected in food products, and, as a result, a warning label must be placed on the products. As demonstrated in the list below, acrylamide claims continued in 2021 (and declined in number due to ongoing litigation), and allegations regarding various metals in food products grew over the course of the year.

  • Acrylamide in Crispy and Roasted Foods. Due to ongoing litigation[1] challenging the Prop. 65 cancer warning for acrylamide products, acrylamide Notices in 2021 were less voluminous than in prior years. Nevertheless, plaintiff citizen enforcers sent more than two hundred sixty (260) total Notices alleging that acrylamide levels in crispy and roasted foods required Prop. 65 warning labels. These foods included popped chips and popcorn, crackers, nuts, tortilla chips and tostadas, sesame sticks, wafer cookies, dinner rolls, protein chips, cauliflower pizza crust, phyllo dough, keto bread, trail mix, almond products, and plantain chips.
  • Lead, Arsenic and Cadmium in Seaweed and Seafood Products. Plaintiff groups continued to allege that a variety of seafood products (including, but not limited to, clams, cuttlefish, shrimp, snails, fish balls, calamari, squid, eel, oysters, and octopus) contained heavy metals and thus required a Prop. 65 warning label.
  • Metals in Dietary Supplements, Health Foods and Protein Bars. Many Notices sent in 2021 also alleged that the presence of metals in dietary supplements, health foods and protein bars required a Prop. 65 warning label.  Products noticed included: various dietary supplements, flax seed, fenugreek, psyllium husk powder, green superfoods powder, protein powder, beet powder, and different types of protein bars.
  • Metals in Spices. Citizen plaintiff enforcers also continued sending Notices alleging that metals in various spices, including but not limited to, paprika, turmeric powder, five-spice powder, ginger paste, curry paste, tomato paste, and date paste, required a Prop. 65 warning label.
  • Metals in Other Various Foods Including Fruits & Vegetables, Spices, Pasta, Ramen, and Crackers. Hundreds of Notices alleged heavy metals such as lead and cadmium were in a variety of other foods including various types of fruits and vegetables (dried, canned, and fresh), crackers, snack mix, stuffed grape leaves, and pasta, therefore requiring a Prop. 65 warning label.
  • Pulegone in Peppermint Extract. Finally, five (5) Notices continued an “on again/off again” trend in Prop. 65 claims alleging that pulegone in peppermint extract requires a Prop. 65 warning label. Pulegone is on the Prop. 65 list as a carcinogen and is present in numerous plant species, including mint.

Personal Care Products

Notices for personal care products also increased in number in 2021, with a number of claims for common products including hand sanitizer, sunscreen, and blush and bronzer.  Some of the first claims relating to Delta-9-tetrahydrocannabinol and CBD products were also made. A summary of high-level trends in personal care product Notices in 2021 is below.

  • Diethanolamine in Gels, Creams and Soaps. Notices alleged that diethanolamine in various gels, creams, soaps, and other similar personal care products required a Prop. 65 warning label.
  • Delta-9-tetrahydrocannabinol in CBD Oil. Several Notices alleged that delta-9-tetrahydrocannabinol in CBD oil products required Prop. 65 warning labels.
  • Diethanolamine, Acetaldehyde, and Benzene in Hand Sanitizer and Hand Cream. A number of Notices alleged that various chemicals in hand sanitizer required Prop. 65 warning labels to be placed on the products.
  • Titanium Dioxide in Powered Cosmetics. Several Notices alleged that titanium dioxide in powered cosmetics, including blushes, required a Prop. 65 warning label. Titanium dioxide claims have been around for a number of years and tend to wax and wane, but are worth watching for those businesses in the cosmetics industry.
  • Benzophenone in Sunscreen. Notices alleged benzophenone in sunscreen required a Prop. 65 warning label.
  • Asbestos in Blush & Bronzer. Notices alleged that asbestos in cosmetics products such as blush and bronzer required a warning label.  Asbestos is on the Prop. 65 list as a cancer causing chemical.

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

Companies selling products in California, and other businesses manufacturing or distributing products for sale in California, should monitor these common Prop. 65 trends and understand whether their products contain chemicals that are commonly targeted by citizen plaintiff “bounty hunter” groups.

Complying with Prop. 65 includes testing products for common Prop. 65 chemicals, understanding potential exposure and consumption, and undertaking exposure assessments. Retail companies down the supply chain can implement contractual indemnity language to ensure 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.  Likewise, manufacturers can manage their Prop 65 risk by understanding the chemical content of their products and current trends in Prop. 65 litigation.

Companies subject to Prop. 65 should also monitor regulatory amendments and understand how these amendments may implicate their compliance programs. For example, in 2022, the State of California proposed a number of regulatory amendments to Prop. 65’s implementing regulations that would, among other things, change the language for on-product “short form warnings,” as well as regulatory amendments that would provide new warning language for food products containing acrylamide.

[1] The issue of the acrylamide cancer warning label is presently being litigated in the Eastern District of California and Ninth Circuit Court of Appeals, in Cal. Chamber of Commerce v. Becerra, Case No. 2:19-cv-02019.  The California Attorney General’s website provides discussion of the Prop. 65 acrylamide litigation and Ninth Circuit appeal at: https://oag.ca.gov/prop65.

Patrick Veasy is a senior associate in Downey Brand’s Sacramento office.  Patrick routinely works on matters involving water quality, environmental site remediation issues, and toxic tort litigation, including under Proposition 65.  Patrick can be reached at [email protected], or via his LinkedIn page.