2022 Prop. 65 Roundup: Over 3,100 Notices for the Usual Suspects Including Lead and Phthalates, Plus New Trends Targeting Textiles and Apparel, and Common Holiday Spices

February 2023

Proposition 65: Trends and Highlights in 2022

Last year was another busy year in the Prop. 65 world. Despite the Ninth Circuit’s March 17, 2022 decision to uphold a preliminary injunction halting new acrylamide cases, Prop. 65 citizen plaintiff groups remained highly active, and initiated new matters for many other chemicals. Indeed, the number of 60-Day Notices of Violation (“Notices”) sent in 2022 closely tracked the number of Notices sent in 2021. Throughout the course of 2022, citizen plaintiff groups sent more than 3,100 Notices to companies allegedly selling products 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, consumer product and personal care 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 2023.

Consumer Products

A number of trends regarding alleged Prop. 65 chemicals in consumer products were consistent throughout 2022. These trends are as follows:

  • Lead in Consumer Products. Lead (and related compounds) remained a common Prop. 65 chemical target. The types of consumer products that allegedly contained lead in 2022 included mugs, 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 wallets, handbags, cosmetic cases, cellphone cases, and sandals. Other consumer products involving these types of claims included helmets, padded armrests, binoculars, luggage, toilet seats, and electrical tape.
  • BPA in Various Consumer Products. Several Notices also alleged that various consumer products including socks, wildlife/hunting calls, face shields, helmets, phone cases, sports bras, and athletic shirts contained BPA and therefore required a Prop. 65 warning label.
  • PFAS in Textiles and Apparel. Toward the end of the year, plaintiff citizen enforcers sent several Notices for alleged Perfluorooctane Sulfonate or Perfluorooctane Sulfonic Acid (“PFOS”) and Perfluorooctanoic Acid (“PFOA”) in textiles and apparel. PFOS and PFOA are two specific chemicals within the class of  per- and polyfluoroalkyl substances (“PFAS”). The Notices for alleged PFOS and PFOA items included rain jackets, jackets, pillows, bibs, shower liners, mattress pads, and duffel bags. For more information about California’s regulation of PFAS outside of Prop. 65, please see Downey Brand’s latest Legal Alert.

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 like lead, arsenic, and cadmium 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 to decrease in number due to ongoing litigation, and allegations regarding various metals in food products grew over the course of the year.

  • Acrylamide[1] in Crispy and Roasted Foods. Due to ongoing litigation[2] challenging the Prop. 65 cancer warning for acrylamide products, acrylamide Notices in 2022 were less voluminous than in years prior to the litigation. Nevertheless, plaintiff citizen enforcers sent a few Notices, amended some earlier Notices, and withdrew others, which all alleged that acrylamide levels in crispy and roasted foods required Prop. 65 warning labels. These foods included chips, cookies, and crackers.
  • 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, seaweed, shrimp, mussels, squid, scallops, anchovy, 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 2022 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, green superfoods powder, protein 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.
  • Methyleugenol in Spices. Finally, several Notices alleged that methyleugenol in spices requires a Prop. 65 warning label. Methyleugenol is on the Prop. 65 list as a carcinogen and is present in spice products like pumpkin pie spices and allspice.

Personal Care Products

Notices for personal care products also increased in number in 2022, with a number of claims for common products including hand sanitizer, sunscreen, blush, and bronzer.

  • 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.
  • Titanium Dioxide in Powered Cosmetics. Several Notices alleged that titanium dioxide in foundation, eyeshadows, powders, and blush, 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.

What Should Food, Consumer Product, Personal Care, 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.  Companies selling products in California should also understand when new and “emerging contaminants” such as PFOA and PFOS are placed on the Prop. 65 list.

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, list new chemicals on the Prop. 65 list and re-start the rulemaking process for “short-form” warnings.

Patrick Veasy is counsel 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.

[1] The Office of Administrative Law approved new warning language for acrylamide on October 26, 2022. The new warning language went into effect on January 1, 2023.

[2] The issue of the acrylamide Prop. 65 cancer warning label is presently being litigated in the U.S. District Court for the Eastern District of California. The California Attorney General’s website discusses the Prop. 65 acrylamide litigation and related Ninth Circuit appeal at: https://oag.ca.gov/prop65.