Proposition 65 Notices of the Month – June 2021: Peppermint Extract, Salted Plums/Saladitos, Canned Fruits, Seaweed & Seafood, Pliable Plastics, and Withdrawal of Wood Dust Notices

July 2021

Proposition 65: Trends and Highlights in June 2021

In June 2021, Proposition 65 (“Prop. 65”) citizen plaintiff groups were active once again, and sent over three hundred (300) total Notices. Once again, a large part of this activity related to allegations regarding food products and the separate withdrawal of wood dust Notices. Notably, because of the stay of the preliminary injunction temporarily prohibiting the issuance of Notices for acrylamide, activity on acrylamide cases resumed for crispy, crunchy, roasted foods. Non-food notices relating to phthalates made up the majority of Notice activity in June, with one hundred thirty-eight (138) total Notices sent throughout the month for pliable plastic products.

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”)).

For the new Notices sent in June, 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 more detailed summary of Notice trends from June is below.

60-Day Notices for Food

The majority of food Notices in June related to allegations of heavy metals (lead, arsenic, and cadmium) in foods. As noted above, acrylamide claims picked-up following the Ninth Circuit stay of the preliminary injunction in Cal. Chamber of Commerce v. Becerra, Case No. 2:19-cv-02019 (E.D. Cal. March 30, 2021).[1]  Examples of other noteworthy categories of food Notices from June are as follows:

• Pulegone in Peppermint Extract. Three (3) Notices continued an “on again/off again” trend in Prop. 65 claims alleging that pulegone in peppermint extract requires a Prop. 65 warning label. Pulegone is on the Prop. 65 list as a carcinogen and is present in numerous plant species, including mints.
• Saladitos/Salted Plums. A new Prop. 65 trend to watch started in June. Citizen plaintiff groups sent four (4) Notices alleging that the lead content in saladitos necessitated a Prop. 65 warning label. Saladitos are dried and salted plums and can also be sweetened with sugar or coated in chili and lime.
• Metals in Seaweed & Seafood. Over twenty (20) Notices alleged that lead, mercury, and cadmium in seaweed and seafood, including tuna salad, clams, crab, scallops, shrimp, silver fish, oysters, sardines, and salmon, required a Prop. 65 warning label. Some of these Notices were “re-Notices” to add new parties in the supply chain to the case and at least one of the seafood Notices was withdrawn.
• Metals in Dietary Supplements. Fifteen (15) Notices alleged that lead and other heavy metals in dietary supplements required a warning label. Some of these Notices were “re-Notices” to add new parties in the supply chain to the case.
• Metals in Fruits and Vegetables. Over twenty-five (25) Notices alleged that lead and cadmium in various types of fruit and vegetable products required a Prop. 65 warning label. These products include: veggie chips, fruit cocktail, cauliflower cups, sliced pineapple, canned pears, dried apricots, fresh kale, spinach, and more.
• Metals in Other Foods, Including Sunflower Seeds, Spices, Pasta, Tortilla Chips, and More. Over twenty (20) Notices for other foods, including sunflower seeds, spices, tortilla chips, and other food products alleged that warning labels were required for metals in the foods. Some of these Notices were “re-Notices” to name the correct parties in the original Notice.
• Acrylamide in Crispy and Roasted Foods. As noted above, there was little acrylamide activity in May. Due in large part to the stay of the preliminary injunction put in place by the Ninth Circuit Court of Appeals pending a “decision on the merits” on the acrylamide cancer warning label issue, acrylamide claims picked up again in June. Some of these claims amended Notices to add additional parties and others were new. Citizen plaintiff groups sent fifteen (15) acrylamide Notices in June for products including cookies, hash browns, tortilla chips, crackers, and plantain chips.

60-Day Notices for Consumer Products

Again, the majority of consumer product Notices in June related to alleged phthalates (DEHP, DINP and DBP) in largely pliable plastic products.  A new trend in Notices related to allegations that power tools and hand tools cause the release of “wood dust,” and thus require a Prop. 65 warning label. As discussed below, the “wood dust” Notices have been withdrawn.  Additional categories of Notices related to alleged lead in ceramics and other consumer products.  Examples of trends in consumer product notices in June are as follows:

• Phthalates (DEHP, DINP and DBP) in Plastic Products. Plaintiff groups sent one hundred thirty-eight (138) Notices in May for alleged phthalates in consumer products, including cosmetics bags, cases, handles/grips, wallets, bath mats, and other miscellaneous pliable plastic items.
• Wood Dust. Nine (9) Notices related to alleged wood dust generated by power and hand tools were withdrawn in June.
• Lead in Ceramics, Fishing Weights, and Other Consumer Products. Over twenty (20) Notices alleged that lead in ceramics, fishing weights and other consumer products required that a warning label be placed on the products.
• Hexavalent Chromium in Leather. Fourteen (14) Notices alleged that lead in leather gloves and flasks required Prop. 65 warning labels.

60-Day Notices for Personal Care Products

In June, citizen plaintiff groups sent several Notices regarding personal care products.  As described below, plaintiff groups sent a Notice alleging asbestos in cosmetics required a warning label and two Notices alleging that diethanolamine in soap required a warning label.

• Asbestos in Blush & Bronzer. One (1) Notice alleged that asbestos in cosmetics products required a warning label: blush and bronzer.  Asbestos is on the Prop. 65 list as a cancer causing chemical.
• Diethanolamine in Soap & Sunscreen. Two (2) Notices alleged that diethanolamine in soap and sunscreen products required a Prop. 65 warning label. The chemical is also on the Prop. 65 list as cancer causing.

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. One example of this is the acrylamide cancer warning label issue that is on appeal before the Ninth Circuit Court of Appeals and rulings throughout that litigation that have impacted the ability of citizen plaintiff groups to send Prop. 65 Notices.

California businesses should monitor Prop. 65 notices and trends, use the Prop. 65 warning language on California products when necessary to avoid receiving a Notice of Violation, and to try and avoid the threat of litigation in California state court.  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 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.

[1] 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.