Proposition 65 Notices of the Month – March 2021: Plastic Consumer Products, Fruits & Vegetables, New Chemical Pulegone in Peppermint Extract, and Relief for Acrylamide Claims

April 2021

Proposition 65: Trends and Highlights in March 2021

In March, Proposition 65 (“Prop. 65”) citizen plaintiff groups once again sent just over three hundred (300) total 60-Day Notices of Violation (“Notices”). Plaintiff groups issued the most amount of Notices for phthalates in plastic consumer products (122 total Notices), followed by lead (116 in total) for both consumer products and foods.  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.

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

60-Day Notices for Food

The majority of food Notices related to allegations of acrylamide and lead. Examples of noteworthy categories of food Notices are as follows.

• Acrylamide in Crispy and Roasted Foods. Thirty-eight (38) total Notices alleged that the acrylamide content of molasses, protein chips, tortilla chips, trail mix, onion rings, cookies, roasted red bell peppers, cereal, cookies, crackers, keto bread, almond butter, chocolate, tostadas, and plantain chips required a Prop. 65 warning label.

Notably, however, on March 30, 2021, after these Notices were sent, the U.S. District Court for the Eastern District of California preliminarily enjoined any person from filing new lawsuits seeking cancer warnings for acrylamide on food and beverage products sold in California. The ruling thus ties the hands of bounty hunter plaintiffs that have sent, or planned to send, Notices alleging that food products contained acrylamide, and therefore required a Prop. 65 warning label. The ruling prohibits the filing of new lawsuits based on these allegations.

• Lead and Cadmium in Canned, Dried, Powdered and Frozen Fruits and Vegetables. Over fifteen (15) Notices were sent for various fruit and vegetable products, including riced sweet potatoes, kale powder, dried mango, dried pineapple, dried apricots, dried fruit blends, and canned fruit.
• Lead, Mercury and Cadmium in Seafood. Over fifteen (15) Notices alleged that various seafood products contained lead, mercury, and cadmium in amounts that required a Prop. 65 warning. These products included: shrimp, clams, mackerel, sardines, anchovy, squid, and salmon.
• Metals in Additional Various Food Products Including Dietary Supplements. Over twenty (20) additional Notices alleged that the lead content in a wide variety of additional foods required a warning label, including dietary supplements, pasta, rice bites, wraps, cinnamon bars, sunflower seeds, cassava chips, cinnamon rolls, and sunflower seeds.
• Pulegone in Peppermint Extract. Notably, citizen plaintiff groups sent two (2) Notices alleging that peppermint extract contains a new and novel Prop. 65 chemical— pulegone.  Pulegone is a constituent of oil extracts prepared from mint plants, including peppermint, spearmint, and pennyroyal, and is on the Prop. 65 list as cancer-causing. These are novel allegations in the Prop. 65 world that may pick up some steam in the coming months.

60-Day Notices for Consumer Products

Once again, the majority of Notices in March for any single type of chemical or product related to alleged phthalataes (DEHP, DINP and DBP) in plastic products. Examples of trends in consumer product notices in March include:

• Phthalates (DEHP, DINP and DBP) in Plastic Products. Plaintiff groups sent one hundred and twenty-two (122) Notices in March for alleged phthalates in consumer products, including: plastic bags, purses, goggles, gloves, coolers, badminton sets, tennis grip tape, and hangers and tongs with vinyl grips.
• Lead in Ceramics, Tools and Hardware. Plaintiff groups sent over twenty-five (25) total Notices for ceramic bowls, trays, and mugs, along with tools, valves, wires, and other hardware.
• BPA in Consumer Products. Ten (10) total Notices alleged that the BPA content of consumer products necessitated Prop. 65 warning labels on products, including airpod cases, ice scrapers, eyeglasses, toolboxes, and earbuds.
• Hexavalent Chromium in Leather Gloves. Six (6) total Notices in March alleged that hexavalent chromium in different types of leather gloves necessitated a Prop. 65 warning label.

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

Prop. 65 trends evolve, change, and shift each month. The trends in Notices depend on the interests of particular plaintiff groups in certain chemicals and products, the concentrations of certain chemicals in easily accessible products, and on the prior success of citizen plaintiffs in enforcing Prop. 65 in a given area. California businesses should monitor Prop. 65 notices and trends, use the Prop. 65 warning language on California products to avoid receiving a Notice of Violation when necessary, and to try and avoid the threat of litigation in California state court.

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 is essential 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.