Proposition 65 Notices of the Month – August 2021: Plastic Consumer Products and Components, Tortilla Chips, Banana Chips, Almond Butter, Canned Fruit, and Sanitizers

September 2021

Proposition 65: Trends and Highlights in August 2021

Last month, citizen plaintiff groups issued over three hundred thirty-five (335) Proposition 65 (“Prop. 65”) Notices of Violation (“Notices”). Alleged phthalates in plastic consumer products and components made up the largest percentage of the Notices, while claims alleging acrylamide and lead content in various foods were a close second.

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”)).

In the Notices described below, plaintiff groups allege that various chemicals in food 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.

60-Day Notices for Food

Prop. 65 Notices related to acrylamide and metals in food products increased substantially last month.[1]  Noteworthy categories of food Notices from August are as follows:

• Acrylamide in Crispy and Roasted Foods. Citizen plaintiff groups sent over thirty-five (35) acrylamide Notices in August for products including almond butter, tortilla chips, totopos, popcorn, tostadas, banana chips, wafers, and cookies.
• Metals in Seaweed & Seafood. Notices for alleged heavy metals in seaweed and seafood products have become common place over the last several years. In August, over fifteen (15) Notices alleged that lead, mercury, cadmium, and arsenic in seaweed and seafood products, including shrimp, mussels, squid, sardines, eel, seaweed snacks, nori, and other similar products required a Prop. 65 warning label.
• Metals in Dietary Supplements. Over fifteen (15) Notices alleged that lead and other heavy metals in dietary supplements required a warning label.
• Metals in Foods Including Canned Fruits, Spices, Tortilla Chips, Snack Bars, Pasta. Over thirty-five (35) Notices in a variety of foods including canned fruit, dietary supplements, pasta, spring rolls, crackers, grain free tortilla chips, chocolate and candies, and other food products alleged that warning labels were required for metals in the foods.
• Notices for Furan in Soy Sauce and Pretzels. In August, three (3) Notices for alleged furan in soy sauce and pretzels were amended and updated.

60-Day Notices for Consumer Products

Once again, the majority of consumer product Notices in August related to alleged phthalates (DEHP, DINP and DBP) in largely pliable plastic products. BPA claims also picked up steam.  Examples are as follows:

• Phthalates (DEHP, DINP and DBP) in Plastic Products and Components. Plaintiff groups issued over one hundred fifty (150) Notices in July for alleged phthalates in consumer products, including the usual cosmetics bag/pouches, as well as luggage, plastic tool grips, rain barrels, hair towels, and other miscellaneous pliable plastic items.
• Bisphenol A (“BPA”) in Receipt Paper, Face Shields, and Other Plastic Items. Over fifteen (15) Notices alleged that BPA in phone cases, mouse pads, safety glasses, and other plastic consumer products required that a warning label be placed on the products.
• Lead in Ceramics and Metal Pipe Fittings. Over twenty (20) Notices alleged that lead in consumer products, including mugs and metal pipe fittings required a Prop. 65 warning label.

60-Day Notices for Personal Care Products

Prop. 65 claims for personal care products in August tapered off somewhat from July, though claims regarding alleged chemicals in hand sanitizers remained abundant. Plaintiff groups sent Notices relating to alleged chemicals in sanitizers, gels and creams, and powdered cosmetics.

• Acetaldehyde and Benzene in Hand Sanitizer. Over thirty-five (35) Notices alleged that various chemicals in hand sanitizer required Prop. 65 warning labels to be placed on the products. Given the volume of hand sanitizer sold in California at present—and national discussion of product recalls related to benzene and other chemicals—we expect these claims to continue and increase in the future.
• Diethanolamine in Gels, Creams and Soaps. Eight (8) Notices alleged that diethanolamine in various gels, creams, soaps, and other similar personal care products required a Prop. 65 warning label.

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

Prop. 65 trends change each month. The trends in Notices depend on the state of the law at the time the Notice is sent, corresponding interests of particular plaintiff groups, as well as the concentrations of chemicals in easily accessible products and the prior successes of citizen plaintiffs in enforcing Prop. 65 in a given area.

In August, the number of acrylamide product Notices increased, likely in response to the ability of plaintiff groups to initiate acrylamide lawsuits before legal issues related to the validity of acrylamide lawsuits are resolved on appeal, and before the trial court.

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. Food companies with products containing acrylamide should monitor the status of the California litigation noted above 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 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 for those down 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 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.

[1] Regarding acrylamide and as discussed in previous monthly updates, the Ninth Circuit Court of Appeals stayed the preliminary injunction in Cal. Chamber of Commerce v. Becerra, Case No. 2:19-cv-02019 (E.D. Cal. March 30, 2021) that prohibited the filing of new acrylamide litigation.  The California Attorney General’s website provides an overview of the current status of the Prop. 65 acrylamide litigation and Ninth Circuit appeal at: https://oag.ca.gov/prop65.