California Citizens Make Hundreds of Claims Alleging Violations of Proposition 65 Law for “Toxics” In Foods During COVID-19 Pandemic

July 27, 2020

Guest Blogger, Food Law Latest

Those in the food industry doing business in California are undoubtedly aware of Proposition 65, the California law that requires all products sold in the state to be labeled with a standard, statutory warning if the products contain certain chemicals, and could expose California consumers to those chemicals at a level causing cancer or reproductive toxicity. It is a powerful California law that is enforced in California state courts, frequently by “interested citizens” alleging that they have purchased products in California that put their health at risk. Companies receiving a Prop. 65 60 Day Notice of Violation (“60 Day Notice” or “Notice”), the document initiating the claim against them, can be sued in California courts and accordingly subject to litigation in California. The regulation has a “citizen suit” provision that allows citizens to recover their attorneys’ fees for their claims. It also authorizes monetary penalties for violations, of up to $2,500 a day, per violation, of the law. Many companies receiving Prop. 65 claims will settle their claims, both in and “out of court.” Settlements can be as large as several hundred thousand, or even a million dollars, per defendant. For companies with high sales volume in California, this risk is significant.

Those doing business in California also might have assumed that the COVID-19 pandemic would have slowed Proposition 65 claims, and given the food industry some much needed “breathing room” from defending these claims.  Unfortunately, this has not been the case.  Citizen Plaintiff groups have sent hundreds of 60 Day Notices during each month of the pandemic, challenging the chemical contents of many different foods. These food Notices allege that lead, mercury, acrylamide, arsenic, and cadmium content in food products requires a warning.

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