Proposition 65 Notices of the Month – April 2021: Overall Declines in the Number of Food Notices for Acrylamide and Heavy Metals, and in the Number of Consumer Product Notices for Phthalates

May 2021

Proposition 65: Trends and Highlights in April 2021

In April, much to the relief of food and consumer products industries, Proposition 65 (“Prop. 65”) citizen plaintiff groups sent roughly half of the number of 60-Day Notices of Violation (“Notices”) that they sent in prior months. More specifically, citizen plaintiffs sent a total of one hundred fifty-three (153) Notices in April, and have, over the past several years, sent roughly three hundred (300) or so Notices each month.

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, mercury, and phthalates (Di(2-ethylhexyl) phthalate (“DEHP”), diisononyl phthalate (“DINP”) and Di-n-butyl phthalate (“DBP”).

The April reduction in Notice numbers is attributable to citizen plaintiff groups sending approximately half of the total number of consumer product Notices for phthalates previously sent in March (62 Notices sent in April and 122 Notices sent in March) and approximately half of the number of total Notices for heavy metals previously sent in March (60 Notices sent in April and 116 Notices sent in March).

Citizen plaintiff groups also substantially reduced the number of Notices they sent alleging violations of Prop. 65’s warning requirement for acrylamide, likely following the recent court ruling banning the filing of new Prop. 65 lawsuits related to cancer warning labels. On March 30, 2021, the U.S. District Court for the Eastern District of California preliminarily enjoined any person from filing new lawsuits seeking cancer warnings for acrylamide on food and beverage products sold in California. (See Cal. Chamber of Commerce v. Becerra, Case No. 2:19-cv-02019 (E.D. Cal. March 30, 2021).) Although the case has been appealed to the Ninth Circuit, at least for now, the ruling ties the hands of citizen plaintiffs with respect to future Notices alleging that food and beverage products containing acrylamide require a Prop. 65 warning.

For the Notices that were sent in April, Plaintiff groups continued to allege that various chemicals in foods and consumer products require Prop. 65 warning labels because the products’ use or consumption exposes California consumers to chemicals in quantities that could cause cancer or reproductive harm. A discussion of Notice trends in April is below.

60-Day Notices for Food

April food Notice trends changed somewhat given the reduction in the number of acrylamide

Notices discussed previously. The majority of food Notices in April related to allegations of heavy metals, primarily lead, in seafood and dietary supplements. Examples of noteworthy categories of food Notices are as follows.

• Metals in Seaweed & Seafood. Eighteen (18) total Notices alleged that lead, mercury and cadmium in seaweed and seafoods including shrimp sauce, sardines, salmon, mackerel and tuna required a Prop. 65 warning label.
• Lead in Dietary Supplements. Twenty-nine (29) total Notices alleged that lead in dietary supplements required a warning label.
• Metals in Various Other Foods, Including Sunflower Seeds and Dried Fruit. Ten (10) additional Notices for various other foods, including sunflower seeds, dried fruit, pasta, cereal bars, and baby food/toddler snacks alleged that warning labels were required for alleged metals in the foods.
• Acrylamide in Crispy and Roasted Foods. Eight (8) total Notices (down from 38 in March) alleged that the acrylamide content of almonds, cookies, snack mix and other snack foods required a Prop. 65 warning label.

60-Day Notices for Consumer Products

Again, the majority of the consumer product Notices in April related to alleged phthalataes (DEHP, DINP and DBP) in largely pliable plastic products, though, as mentioned previously, this number was down to a total of 62 Notices in April, from 122 total Notices in March. Examples of trends in consumer product notices for all chemicals in April include:

• Phthalates (DEHP, DINP and DBP) in Plastic Products. Plaintiff groups sent sixty-two (62) Notices in April for alleged phthalates in consumer products, including cosmetics bags, jump ropes, pocket protectors, the shoulder strap of handbags, tennis racket covers, and tools with vinyl grips.
• BPA in Consumer Products. Eleven (10) total Notices alleged that the Bisphenol A (“BPA”) content of consumer products necessitated Prop. 65 warning labels on products, including plastic cooking containers, safety glasses, tool sets, snow shovels, and a barstool.
• Hexavalent Chromium in Leather Golf Gloves. One (1) Notice in April alleged that hexavalent chromium in leather golf gloves necessitated a Prop. 65 warning label.
• N-Nitrosodiethylamine in Work Out Bands. Four (4) Notices were sent alleging that the content of this chemical in work out bands necessitated a Prop. 65 warning label.  N-Nitrosodiethylamine is on the Prop. 65 list as causing cancer.  These are some of the first Notices alleging that warning labels are required for this chemical, and this will be a trend to watch in the up and coming months.

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

Prop. 65 trends evolve, change, and shift each month, and the month of April is no exception. The trends in Notices depend on the interests of particular plaintiff groups in certain chemicals and products, the concentrations of certain chemicals in easily accessible products, and on the prior success of citizen plaintiffs in enforcing Prop. 65 in a given area. California businesses should monitor Prop. 65 notices and trends, use the Prop. 65 warning language on California products to avoid receiving a Notice of Violation when necessary, and to try and avoid the threat of litigation in California state court. In particular, food companies with products containing acrylamide should monitor the status of the California litigation relating to cancer warning labels for acrylamide in order to assess their risk and the likelihood of receiving a Notice in the future.

Prop. 65 is a substantial risk issue for companies selling products in California, particularly if the products contain the common Prop. 65 chemicals we discuss here. In addition to the costs of compliance and labeling associated with the regulation, a Prop. 65 dispute can subject a potential defendant to attorneys’ fees in both defending the claim, and, if the claim is resolved in settlement, 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 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.

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.