Prop. 65 Plaintiffs are “Fishing” for More…

July 2023

Proposition 65: Trends and Highlights

Downey Brand’s latest roundup of Proposition 65 Notices of Violation (“Notices”) summarizes the Notices filed in the first two quarters of 2023.

Between the first and second quarters of 2023, citizen plaintiff groups issued one thousand nine-hundred fifteen (1,915) total Notices, which was about two hundred more Notices than the combined third and fourth quarters of 2022.

Per usual, seafood products remain a key target of plaintiff groups. Ceramics and glassware also continue to be popular targets. With the addition of certain per- and poly-fluoralkyl substances (PFAS) like PFOA and PFOS to the Prop. 65 list in recent years, there has also been an emerging set of Notices across apparel and other consumer product categories as plaintiff groups continue to test the waters with respect to Prop. 65 enforcement actions alleging PFAS.

Prop. 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, requires “clear and reasonable warnings” on products sold in California if use of the products causes 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 if they are successful. Common chemicals in Notices that are typically targeted include lead, acrylamide, cadmium, arsenic, and phthalates (Di(2-ethylhexyl)), phthalate (“DEHP”), diisononyl phthalate (“DINP”), and Di-n-butyl phthalate (“DBP”).

Notices from the first and second quarters of 2023 involve allegations that various chemicals in food, consumer products, and personal care products required Prop. 65 warning labels because the products’ use or consumption exposes California consumers to chemicals in quantities that could cause cancer or reproductive harm.

60-Day Notices for Food

• Metals in Seafood Products. Plaintiff groups issued 120 Notices for various seafood products that allegedly contained various metals such as lead, cadmium, as well as arsenic. Specific products were diverse and included seaweed, shrimp, anchovy, sardines, clams, crab, and eel.
• Metals in Dietary Supplements. As with prior updates, dietary supplements remained another target in the past two quarters. There were 55 Notices alleging heavy metals including lead and cadmium in various dietary supplements, including protein powders and protein shakes, required a Prop. 65 warning label.
• Lead in Various Foods. Many Notices alleged that a wide variety of foods contained high levels of lead and required a Prop. 65 warning. This included 68 Notices for dried and canned fruits and frozen vegetables like spinach; 25 Notices for seeds like flaxseed, grains, granola, cereal products, and protein/nutrition bars; 76 Notices for noodle products like pastas and ramen; 19 Notices for chocolate, chips, crackers, cookies, and candy; 12 Notices for sauces like pesto, curry, and chili sauce; 8 Notices for soups; 22 Notices for spices; 8 Notices for rice; and over 150 more Notices for other various food products.
• An Aside on Acrylamide. 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 and U.S. Court of Appeals for the Ninth Circuit, in Cal. Chamber of Commerce v. Becerra, Case No. 2:19-cv-02019. Last year, the Ninth Circuit upheld the district court’s issuance of a preliminary injunction barring new acrylamide/cancer warning label lawsuits. As recently as April 2023, the United States Supreme Court declined to review the issue. The California Attorney General’s website discusses the Prop. 65 acrylamide litigation and Ninth Circuit appeal at: https://oag.ca.gov/prop65.

Please also note that there are two relatively new regulations from the Office of Environmental Health Hazard Assessment (“OEHHA”) relating to Prop. 65 warnings for acrylamide. One of these regulations creates new, alternative warning language that states acrylamide is a “probable human carcinogen” and that “many factors affect your cancer risk.”  See 27 CCR § 25607.2(b).

The other new acrylamide regulation excepts acrylamide levels in certain foods from being considered “exposures” that require Prop. 65 warnings. The regulation identifies particular foods and certain acrylamide levels that are excepted. See 27 CCR § 25506.

60-Day Notices for Personal Care Products

Personal care product Notices in the first and second quarter of 2023 focused on cosmetic products, shower products, and topical ointments, lotions, and masks.

• Titanium Dioxide and Phthalates in Cosmetic Products. 143 Notices were sent for titanium dioxide, DINP, and DEHP in various cosmetic products such as foundation, eyeshadows, powders, and blush.
• DEHP in Cosmetic Storage, Tools, and Accessories. There were 26 Notices alleging DEHP in various cosmetic accessories including cosmetic bags, makeup brushes, eyelash curlers, and tweezers.
• Benzene and Diethanolamine in Shower Products. Citizen plaintiff groups issued 19 Notices for shower products allegedly containing coconut oil diethanolamine condensate (cocamide diethanolamine), diethanolamine, and benzene. Products included shampoo and conditioner, shower gel, and cleansers.
• Diethanolamine in Ointments, Lotions, and Masks. Another 25 Notices alleged diethanolamine in miscellaneous topical products such as ointments, lotions, and masks.

60-Day Notices for other Consumer Products

• PFOA in Various Products. There were 13 Notices alleging PFOA in various consumer products, including crib mattress pads, shower curtains, blankets, lunch bags, and dietary supplements.
• BPA and Chromium (hexavalent compounds) in Apparel. There were 9 Notices alleging BPA in apparel products such as athletic shirts, sports bras, leggings, and women’s heels. There were another 28 Notices for chromium (hexavalent compounds) in gloves worn for sports.
• Lead and Cadmium in Ceramics and Glassware. 265 Notices alleged that lead and cadmium in mugs, glassware, and other ceramic products required Prop. 65 warning labels.
• Lead in Fishing and Solder Wires. There were 93 Notices for fishing sinkers and solder wires that alleged lead in these products.
• Phthalates (DEHP, DINP, DBP) and BPA in Plastic Products and Components. Plaintiff citizen enforcers sent just over 900 Notices alleging that various phthalates in pliable plastic products required Prop. 65 warning labels. The products at issue are diverse, but included wallets, helmets, lanyards, pencil cases, handbags, and vinyl products.

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

Prop. 65 trends change each month according to the state of the law, interests of citizen plaintiff groups, as well as the concentrations of chemicals in easily accessible products and chemical listings and classifications on the Prop. 65 list. Companies doing significant business in California should monitor Prop. 65 notices and trends and use the Prop. 65 warning language on California products when required.

Prop. 65 is a substantial risk issue for companies selling products in California. Compliance and labeling is costly, as is a Prop. 65 dispute, which can subject a potential defendant to attorneys’ fees in both defending the claim and the plaintiff’s attorneys’ fees as well.

Complying with Prop. 65 includes testing products for common Prop. 65 chemicals and understanding potential exposure of the public to the chemical at issue. Implementing contractual indemnity language in the supply chain helps to ensure that products sold in California (either online or in brick-and-mortar stores) are adequately screened by upstream manufacturers, suppliers, and producers for Prop. 65 compliance. Prop. 65 liability most frequently rests with those up the supply chain. For those businesses, monitoring Prop. 65 trends and common claims is a key part of a successful compliance program.

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.