A Year in Review – Prop. 65 Notices: Unleaded Gasoline Notices Emerge as a Top Trend Across the State in 2023

March 2024

Proposition 65: Trends and Highlights

Two thousand twenty-three was no exception to the trend of recent years in the ever-increasing issuance of private enforcer-led Proposition 65 60-Day Notices of Violation (“Notices”) to businesses allegedly selling consumer, food, and personal care products in California. Last year, citizen plaintiff groups sent more than 4,100 Notices to various companies, which was almost 1,000 more Notices than 2022. 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 2024.

2023’s Unleaded Gasoline Notice Surge

Although not captured in the specific categories highlighted below, there was a major surge in Notices relating to unleaded gasoline. There were 676 Notices alleging exposures to unleaded gasoline without a Prop. 65 warning at various service stations throughout the state. These Notices were led by approximately eight private individuals, the vast majority of which were represented by one of two plaintiff attorney firms.

Consumer Products

A number of trends regarding alleged Prop. 65 chemicals in consumer products were consistent throughout 2023. 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 2023 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, and cellphone cases. Other consumer products involving these types of claims included wallets, helmets, lanyards, pencil cases, handbags, and vinyl products.
• BPA in Various Consumer Products. Several Notices also alleged that various consumer products including socks, heels and sandals, phone cases, athletic shorts, sports bras, leggings, and clutch bags contained BPA and therefore required a Prop. 65 warning label.
• PFAS in Textiles, Apparel, and Other Consumer Products. Towards 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 such as jogging pants and jackets. 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 grill covers, hats, bibs, nonstick pans, toiletry bags, wallets, umbrellas, and lunch bags.

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 in Crispy and Roasted Foods. Due to ongoing litigation challenging the Prop. 65 cancer warning for acrylamide products, there were no Notices for acrylamide in 2023.
• 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, anchovy, clams, crab, eel, salmon, and herring) contained heavy metals and thus required a Prop. 65 warning label.
• Metals in Dietary Supplements, Health Foods and Protein Bars. Many Notices sent in 2023 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, protein powder, and different types of protein bars.
• Metals in Spices and Sauces. Citizen plaintiff enforcers also continued sending Notices alleging that metals in various spices and sauces such as tomato paste, curry paste, mole, and pesto required a Prop. 65 warning label.
• Metals in Other Various Foods Including Fruits & Vegetables, 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, frozen, and fresh), crackers, and pasta; and therefore required a Prop. 65 warning label.

Personal Care Products

Notices for personal care products also increased in number in 2023, with a number of claims for common products including powdered cosmetics.

• Diethanolamine in Personal Care Products. Notices alleged that diethanolamine in various ointments, lotions, and masks and other similar personal care products required a Prop. 65 warning label.
• PFOA in Shower Products. A few Notices alleged PFOA in shower caps, liners, and curtains required Prop. 65 warning labels.
• 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 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. 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.

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.