Proposition 65 Notices of the Month – January 2021: Duck Callers, Duck (To Eat), More Seafood, Fruits & Vegetables, and Plastic Products Targeted by Plaintiff Groups

February 2021

Proposition 65: Trends and Highlights in January 2021

Two thousand twenty-one is off to a roaring start in California’s Proposition 65 (“Prop. 65”) world.  Prop. 65 plaintiff groups issued two hundred thirty-seven (237) total 60-Day Notices of Violation (“Notices”), with a number of these Notices amending pre-existing Notices.  Plaintiff groups 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.

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”)).

Two thousand twenty-one has proven, in its first month, to be no exception, with consumer product Notices for phthalates and food Notices for acrylamide and metals taking the lead in the numbers count.  A discussion of Prop. 65 Notice trends is provided below.

60-Day Notices for Food

In the first month of 2021, over ninety (90) Notices alleged that food products and dietary supplements required Prop. 65 warning labels.  Notably, in addition to the ubiquitous acrylamide and dietary supplement claims that have abounded in the last several years, a number of Notices were issued regarding alleged metals in fresh vegetables and seafoods, which have ebbed and flowed over time.  These categories of Notices are described below.

• Acrylamide in Cookies, Dinner Rolls, Protein Chips, Cauliflower Pizza Crust, Phyllo Dough, Keto Bread, Trail Mix, Almond Products, Corn Chips, Tostadas, and Plantain Chips. Thirty-five (35) Notices alleged that acrylamide in crispy snack foods, desserts and almond products necessitated a Prop. 65 warning.
• Metals in Duck, Seafood & Seaweed (Crab, Mussels, Anchovies, Herring, Mackerel, Rabbitfish, Bream, Ponyfish). Seaweed and Seafood Notices continued in January, along with a few additional Notices for duck products, as they did in 2020.  Eighteen (18) total Notices were sent alleging that duck, seaweed and seafood products contained lead, cadmium and arsenic.
• Lead in a Variety of Foods, Including Fresh Vegetables, Dried/Canned Fruits and Vegetables/Chips, Dolmas, and Tortillas. Twenty (20) Notices were issued in January 2021 alleging that a variety of fresh and dried/canned fruits and vegetables contained lead and thus required a Prop. 65 warning label.  A number of Notices also alleged that dolma/stuffed grape leaf products and tortilla products contained lead.
• Lead and Other Metals in Spices & Dietary Supplements (Ginger, Turmeric, Thyme, Cinnamon, Pumpkin Pie Spice). Twelve (12) total Notices alleged that the lead and metal content of a variety of spice products and dietary supplements required a Prop. 65 warning.

60-Day Notices for Consumer Product

Consumer product Notices in January of 2021 were fairly consistent with trends in 2020 and before, and centered largely on alleged phthalataes (DEHP, DINP and DBP) in a variety of products, along with alleged lead in ceramics, glassware and other housewares.  Bisphenol A (“BPA”) Notices also picked up steam in numbers in January.  Common trends in consumer product Notices in January were:

• Phthalates (DEHP, DINP and DBP) in Bags/Cases/Pouches, Binoculars, Plastic Handles, Notebook Covers, and Other Vinyl/PVC Consumer Products. Over one hundred (100) total Notices alleged that phthalates in various plastic consumer products and other consumer products with plastic components required a warning.
• Lead in Ceramics, Glassware and Other Housewares Including Lanterns and Picture Frames. Reviving a trend from years past, in January, plaintiff citizen enforcers sent thirteen (13) Notices alleging that the lead content in various ceramics, glassware and home goods or housewares required a Prop. 65 warning label.
• BPA in Various Consumer Products Including Duck Callers and iPhone Cases. In January 2021, citizen plaintiff groups sent eight (8) Prop. 65 Notices alleging that BPA content in a number of consumer products required warning labels to be placed on those products.
• Carbon Monoxide from Fire Starting Products. Citizen plaintiff groups sent six (6) Notices alleging that carbon monoxide from fire starting products required Prop. 65 warning labels.

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

Prop. 65 continues to be a significant 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.

Companies selling products in California, and manufacturing or distributing products for sale in California, are subject to Prop. 65’s warning requirements.  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.

Complying with Prop. 65 includes testing products for common Prop. 65 chemicals, understanding potential exposure and consumption, and undertaking an exposure assessment.  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.