Proposition 65 Notices of the Month – Nov. 2020: Pretzels, Molasses, Sunflower Seeds, Shampoos, Leather Gloves & Fishing Weights – All Targeted by Citizen Plaintiff Groups

December 2020

Proposition 65: Trends and Highlights in November 2020

In November 2020, Proposition 65 (“Prop. 65”) plaintiff groups issued three hundred and fourteen (314) Prop. 65 60-Day Notices of Violation (“Notices”).  In these Notices, plaintiff groups allege that 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.

A number of allegations in November related to the alleged chemical contents of food products, including but not limited to pretzels, molasses, seafood, spices, and processed foods such as “pasta with meat sauce,” and packaged fruit in syrup.  Notices for consumer products in November largely related to allegations of phthalate content in the products, with additional Notices relating to alleged hexavalent chromium in leather gloves and lead in fishing weights.  Notices for personal care products alleged that shampoos and body washes contained cocoamide diethaolamine and thus required a warning.

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”)).

60-Day Notices for Food

In November, predictably, over one hundred (100) Notices alleged that various food products required Prop. 65 warning labels, spanning from alleged lead and various metal content in spices, supplements, seafood and lasagna, to acrylamide in snack foods, as well as new and novel allegations regarding furan and furfuryl alcohol in pretzels.  These categories of Notices are described below.

• Acrylamide in Molasses/Molasses Powder, Sunflower Seeds, Cereal, Chips (Corn, Plantain, Protein and Tostadas), Cookies/Chocolate Cookies, Crackers, Graham Crackers, and Taco Shells. Forty-Four (44) Notices (down from over 80 total Notices in October) alleged acrylamide in crispy snack foods, desserts and almond products necessitated a Prop. 65 warning.
• Lead in Cauliflower Pretzels, Lasagna with Meat Sauce, Carrots, Fruit in Sauce, Dolmas, Kale Chips, Seaweed, and Snack Bars. Allegations regarding the lead content in a variety of food products were again abundant in November.  Over the last few months, these Notices have increased in variety to include a number of packaged foods.  Over ten (10) total Notices alleging lead in food products were sent in November.
• Metals in Seafood (Squid, Shrimp, Clams, Mussels and Mixed Seafood). Seafood Notices continued in November, as they have throughout the year.  Ten (10) total Notices were sent alleging that seafood products contained lead, cadmium and arsenic.
• Lead in Spices (Ginger, Turmeric, Thyme, Cinnamon, Pumpkin Pie Spice). Over twenty (20) total Notices alleged that the lead content of a variety of spice products required a Prop. 65 warning.
• Furan & Furfuryl Alcohol in Pretzels. Three (3) total Notices alleged that the furan content of pretzels necessitated a Prop. 65 warning, and an additional separate single Notice alleged that the furfuryl alcohol content of pretzels necessitated a Prop. 65 warning.

60-Day Notices for Consumer Products

Consumer product Notices in November continued similar trends as in months past, and included many notices for alleged phthalates in consumer products, as well as notices related to allegations of lead, formaldehyde and hexavalent chromium in consumer products, which are described in more detail below.

• Phthalates (DEHP, DINP and DBP) in Plastic Bags & Cases, Boxing Gloves, Vinyl Tape, and Other Vinyl/PVC Consumer Products. One hundred sixty-three (163) total Notices (up from 133 total Notices in October) alleged that phthalates in various plastic consumer products and consumer products with plastic components required a warning.
• Hexavalent Chromium in Leather Gloves (Including Golf Gloves, “Gamer Gloves” and Equestrian Gloves). A trend that has been consistent in the Notices from August to October, also continued in November.  Twelve (12) Notices in November alleged that chromium in leather gloves required a warning.
• Formaldehyde in Bed Sheet Sets. Four (4) Notices alleged that formaldehyde content in bed sheet sets required a Prop. 65 warning in November.  Seven (7) similar Notices were sent in October.
• Lead in Fishing Weights. Reviving a trend from months past, in November (as in October as well) plaintiff citizen enforcers sent seven (7) Notices alleging that the lead content in fishing weights required a warning label.

60-Day Notices for Personal Care Products

In November, cocoamide diethanolamine re-emerged as a trend to watch related to Prop. 65 allegations for personal care products.  In years past, there has been significant litigation alleging that the presence of this chemical, frequently found in soaps, necessitates a Prop. 65 warning label on shampoo-like products.  In November, eleven (11) Notices alleged that shampoos, soaps and body washes required a Prop. 65 warning.

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

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, where required, 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 feeling comfortable with the results of 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 compliances.

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.