Proposition 65 Notices of the Month – May 2022: “Greatest Hits” Such as Metals in Foods and Phthalates in Plastics & Chemicals in Cannabis-Related Accessories Creating Interest for Citizen Plaintiff Groups

June 2022

Proposition 65: Trends and Highlights in May 2022

In May 2022, citizen plaintiff groups issued over two hundred sixty (260) new Proposition 65 (“Prop. 65”) Notices of Violation (“Notices”), including some “re-notices” to add additional defendants and products to pending Notices.  This alert discusses these claims and other trends in Prop. 65 Notices for the month of May 2022, which were a great example of the “greatest hits” in Prop. 65 claims by plaintiff groups.  These typical claims include alleged lead and other metals in various food products, alleged phthalates in pliable plastic products, and alleged lead in ceramics and glassware.

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 May 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

Last month, 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.  Plaintiffs groups also sent several Notices regarding alleged acrylamide in vegetable-based snack foods.

• Acrylamide in Crispy and Roasted Foods.[1] Plaintiff citizen enforcers sent six (6) Notices, including re-Notices, for foods that allegedly contained acrylamide at levels that required a Prop. 65 warning label.  These foods included chips, crackers, snacks, and tortilla chips.

• Metals in Various Foods. Claims regarding alleged metals such as lead, cadmium, and arsenic in various foods remained abundant in the month of May.  Plaintiff citizen enforcers sent just under one hundred (100) total Notices alleging a wide variety of foods contained high levels of metals and required a Prop. 65 warning.  These foods included:  seafood, seaweed, spices, pastas, fruits & vegetables including dried mushrooms, dips, taquitos, muffins, chili peppers, and cooking mixes.
• Metals in Dietary Supplements. As with prior months, dietary supplements remained another target for May 2022.  Sixteen (16) Notices alleged that heavy metals including lead and cadmium in various dietary supplements required a Prop. 65 warning label.

60-Day Notices for Personal Care Products

Personal care product Notices in May 2022 were limited to alleged titanium dioxide in powered cosmetics, and Notices related to cannabis accessories.

• Titanium Dioxide in Powdered Cosmetics. Five (5) Notices were sent for titanium dioxide in powdered cosmetics, including blushes, bronzers, and eye shadows.

• Marijuana smoke, Δ9-Tetrahydrocannabinol (Δ9-THC; delta-9-THC) in Cannabis-Related Accessories. Three (3) Notices were sent for cannabis-related accessories, including edibles and vape pens.

60-Day Notices for Consumer Products

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

• Lead in Ceramics and Glassware. Over twenty (20) Notices alleged that lead in mugs, glassware, and other ceramic products required a Prop. 65 warning label.
• Phthalates (DEHP, DINP, DBP) and BPA in Plastic Products and Components. Plaintiff citizen enforcers sent twenty-five (25) Notices alleging that various phthalates in pliable plastic products required Prop. 65 warning labels. The products at issue are diverse, but included luggage, backpacks, shower heads, and tape measures.

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.