Proposition 65 Notices of the Month – February 2021: Fruits & Vegetables, Pretzels, Chips, Tostadas, Seafood, and More Plastic Products Targeted by Plaintiff Groups

March 2021

Proposition 65: Trends and Highlights in February 2021

In February, Proposition 65 (“Prop. 65”) plaintiff groups issued, per normal, just around three hundred (300) total 60-Day Notices of Violation (“Notices”)—two hundred and ninety-six (296) Notices to be exact—and some of which amended Notices from prior months to name additional parties and add other products to the Notices.

Plaintiff groups continue to allege that various chemicals in foods and consumer products require Prop. 65 warning labels because the use or consumption of the products expose California consumers to chemicals in quantities that could cause cancer or reproductive harm.  Notably, plastics and snack foods continue to be popular products on which these allegations are based.

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 an 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”)).  A discussion of Notice trends in February is provided below.

60-Day Notices for Food

In February of 2021, just short of one hundred (100) total Notices alleged that various food products and dietary supplements required Prop. 65 warning labels.  Food Notices in February largely centered on acrylamide and metals allegations, with a handful of Notices alleging that the furan content of pretzels and other roasted and processed food products required warning labels.  Examples of noteworthy categories of food Notices in February are as follows.

• Acrylamide in Crispy Snack Foods. Forty (40) total Notices alleged that the acrylamide content of potato, corn and tortilla chips, tostadas, pretzels, cookies, crackers, wraps, pizza crusts, granola, and almond crisps required a Prop. 65 warning label.
• Lead and Cadmium in Fruits and Vegetables. Twelve (12) total Notices alleged that various types of fruits and vegetables—canned, dried and fresh—contained amounts of lead and cadmium that required Prop. 65 warnings be placed on the products. The products included kale chips, dried fruits, carrot sticks, baby food, mashed sweet potatoes, and kelp noodles.
• Lead/ Mercury/ Cadmium in Seafood. Ten (10) total Notices alleged that various seafood products contained lead, mercury and cadmium in amounts that required a Prop. 65 warning. These products included clam sauce, anchovies in olive oil, lobster, mussels, clams, crab, herring, shrimp, oysters, and squid.
• Metals in Additional Various Food Products Including Dietary Supplements. A whopping twenty-five (25) additional Notices alleged that the lead content in a wide variety of additional foods required a warning label, including mole sauce, ramen, sunflower seeds, pasta, wraps, pickled ginger, snack bars, pesto sauce, muffins, seaweed, and dietary supplements.
• Furan in Pretzels, Baked Beans and Soy Sauce. Furan has been an emerging chemical in Prop. 65 Notices over the last year or so.  In February, eight (8) total Notices were issued alleging furan content in foods required a Prop. 65 warning label.

60-Day Notices for Consumer Products

The majority of Notices in February 2021 were issued for consumer products, and specifically targeted at alleged phthalates (DEHP, DINP and DBP) in plastic products.  Lead in a variety of products, including tools and hardware and Bisphenol A (“BPA”) Notices rounded out the Notices in February relating to consumer products.  Examples of common trends in consumer product Notices in February include:

• Phthalates (DEHP, DINP and DBP) in Plastic Products. Plaintiff groups sent over one hundred and sixty (160) Notices in February for alleged phthalates in plastic products, including (but not limited to) bags, cases and purses, shoes, tools, glasses cases, clothing gloves, and hair curling rods.
• Lead in Consumer Products Including Tools, Garden Hoses and Plumbing Fittings. Plaintiff groups sent close to ten (10) Notices alleging that lead in the following types of consumer products required a Prop. 65 warning label:  wire, belts, fishing sinkers, garden hoses, and plumbing fittings.
• BPA In Consumer Products Including Sport Face Shields, Cell Phone Cases and Helmets. Eight (8) Total Notices alleged that the BPA content of the following types of consumer products necessitated Prop. 65 warning labels on the products:  sport face shields and masks (for hockey and lacrosse), cell phone cases, coolers, and helmets.

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

Prop. 65 trends subtly evolve each month.  The trends in Notices ebb and flow, and are driven in large part by the interests of particular plaintiff groups in certain chemicals and products, and the concentrations of certain chemicals in easily accessible products.  California businesses should monitor Prop. 65 notices and trends and use the Prop. 65 warning language on California products to avoid receiving a Notice of Violation, and to avoid the threat of litigation in California state court.

Prop. 65 is a very real 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, understanding potential exposure and consumption of the public to the alleged chemicals in the products at issue.  For retail companies down the supply chain, implementing contractual indemnity language is essential to ensuring 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.

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.