Proposition 65 Notices of the Month – June 2022: Seafood Products Catch Renewed Interest and Ceramic Glassware Remain Key Target of Citizen Plaintiff Groups

July 2022

Proposition 65: Trends and Highlights in June 2022

Last month, citizen plaintiff groups issued three hundred sixteen (316) Proposition 65 (“Prop. 65”) Notices of Violation (“Notices”), which was approximately 50 more Notices than last month.  Significantly, there has been a renewed interest in seafood products for allegedly containing various metals such as lead and cadmium over the last few months.  In addition, alleged lead in ceramics and glassware continued to be a key target of citizen plaintiff groups.  This alert discusses these types of claims and other trends in Prop. 65 Notices for the month of June 2022.

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

In the June Notices, citizen plaintiff groups alleged that various chemicals in food, consumer products, and personal care products required 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

There has been an observable and renewed interest in seafood products over the last few months.  In June, the majority of Notices plaintiff citizen enforcers sent related to allegations that alleged lead and other metals in numerous types of foods required Prop. 65 warning labels including seafood products and fruits and vegetables.  Like last month, plaintiff groups also sent several Notices regarding alleged acrylamide in roasted or toasted foods.

• Metals in Seafood Products. Plaintiff groups issued a whopping sixty-nine (69) total Notices last month for various seafood products that allegedly contained various metals such as lead, cadmium, as well as arsenic.  Specific products were diverse and included squid, shrimp, seaweed, mussels, octopus, herring, crab, and even wild sea cucumber.
• Lead in Various Foods. Claims regarding lead in various foods remained a popular target.  Plaintiff citizen enforcers sent thirty-one (31) total Notices alleging a wide variety of foods contained high levels of lead and required a Prop. 65 warning.  These foods included ramen, pasta, seasoned pork, soups, pretzels, and taco kits.
• Metals in Dietary Supplements. As with prior months, dietary supplements remained another target for June 2022.  Eight (8) Notices alleged that heavy metals including lead and cadmium in various dietary supplements required a Prop. 65 warning label.
• Acrylamide in Crispy and Roasted Foods.[1] Finally, plaintiffs also sent nine (9) Notices for foods that allegedly contained acrylamide at levels that required a Prop. 65 warning label.  These foods included chips, cookies, and cauliflower crackers.

60-Day Notices for Personal Care Products

Personal care product Notices in June 2022 focused on cosmetic products and sunscreen.

• Titanium Dioxide and Diethanolamine in Cosmetic Products. Fifteen (15) Notices were sent for titanium dioxide and diethanolamine in various cosmetic products such as blushes, bronzers, eye shadow, and mascara.

• Benzophenone in Sunscreen. Citizen plaintiff groups issued ten (10) Notices for sunscreen products for allegedly containing benzophenone.

60-Day Notices for Consumer Products

The focus of consumer product Notices in June 2022 remained on alleged phthalates (DEHP, DINP and DBP) in plastic products and alleged lead in ceramics and hardware.

• Lead in Ceramics and Glassware. Thirty-seven (37) Notices alleged that lead in mugs, glassware, and other ceramic products required a Prop. 65 warning label.  This was nearly double the amount of Notices as last month.
• Phthalates (DEHP, DINP, DBP) and BPA in Plastic Products and Components. Plaintiff citizen enforcers sent ninety-five (95) Notices alleging that various phthalates in pliable plastic products required Prop. 65 warning labels. The products at issue are diverse, but included cell phone cases, padded armrests, sandals, bicycle seats, and other vinyl items.

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

Prop. 65 trends change each month according to the state of the law, interests of citizen plaintiff groups, as well as the concentrations of chemicals in easily accessible products.  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.

Prop. 65 is a substantial risk issue for companies selling products in California.  Compliance and labeling is costly, as is a Prop. 65 dispute, which can subject a potential defendant to attorneys’ fees in both defending the claim and 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 in 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] The issue of the acrylamide Prop. 65 cancer warning label is presently being litigated in the Eastern District of California and Ninth Circuit Court of Appeals, in Cal. Chamber of Commerce v. Becerra, Case No. 2:19-cv-02019.  The Ninth Circuit recently upheld the district court’s issuance of a preliminary injunction barring new acrylamide/cancer warning label lawsuits.  The California Attorney General’s website discusses the Prop. 65 acrylamide litigation and Ninth Circuit appeal at: https://oag.ca.gov/prop65.