Proposition 65 Notices of the Month – Oct. 2020: Lead in Food, Diethanolamine in Personal Care Products, Formaldehyde in Bed Sheet Sets, and, As Always, Acrylamide in Snack Foods, and Phthalates in Plastics

November 2020

Proposition 65: Trends and Highlights in October 2020

October 2020 Proposition 65 (“Prop. 65”) claims were, once again, varied and abundant with respect to food and consumer product allegations.  Plaintiff groups issued three hundred and thirty-three (333) total Prop. 65 60-Day Notices of Violation (“Notices”), the majority of which alleged that common chemicals in foods and consumer products (acrylamide in foods and phthalates in consumer products) required Prop. 65 warning labels because the use or consumption of these products exposed California consumers to chemicals in quantities that could cause cancer or reproductive harm.  Notices for personal care products also alleged that diethaolamine in mascara, eye cream, and skin moisturizer necessitated a Prop. 65 warning.  Many additional Notices with allegations relating to metals content (lead, cadmium and arsenic) permeated Notices relating to both consumer products and foods.

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”)).  Bisphenol A (“BPA”), hexavalent chromium and formaldehyde were also alleged to be present in harmful levels in products sold in California in October.

60-Day Notices for Food

In October, over eighty (80) food Notices alleged that acrylamide in crispy browned foods required Prop. 65 warning labels.  Notices alleging lead in dietary supplements, a variety of different types of foods (including canned goods), seafood and seaweed were also prevalent.  Several Notices also alleged BPA in canned food goods.  These categories of Notices are described below.

• Acrylamide in Chips (Corn, Protein and Tostadas), Cookies/Tea Biscuits/Chocolate Cookies, Crackers, Chex Mix, Pretzels, Waffles, Stuffing, and Almond Products. An incredible 82 Notices alleged acrylamide in many crispy snack foods and deserts necessitated a Prop. 65 warning, from chips and tostadas, to cookies and tea biscuits and almond products, and many crispy and crunchy foods in between.
• Lead in Canned Fruit, Crackers & Cookies, Seafood, Mango, Noodles, Spices, and Churros. Allegations of lead in a variety of food products were abundant in October.  Over the last few months, these Notices have largely been limited to seaweed and seafood products and have increased in variety to include a number of other foods.  Thirty-five (35) total Notices alleging lead in food products were sent in October.
• Metals in Seaweed. Seaweed Notices continued in October, as they have throughout the year.  Seven (7) total Notices were sent alleging that seaweed products contained lead, cadmium and arsenic.
• Metals in Dietary Supplements. Allegations of metals in dietary supplements also continued in October, with 19 Notices alleging that the metal content of supplements necessitated a Prop. 65 warning label.
• BPA in Canned Goods. Four (4) Notices alleged that the BPA content of canned fruits and pastas required a Prop. 65 warning.

60-Day Notices for Consumer Products

Consumer product Notices in October were varied as to both products and chemicals, with the majority of the Notices, as in months past, alleging that products with plastic components containing phthalates required Prop. 65 warning labels.  Other trends that have appeared from time to time in 2020 and are discussed below also occurred in the month of October.

• Phthalates (DEHP, DINP and DBP) in Plastic Bags, Cases, Pouches, Purses, Cushions, and Tools with Plastic Components. One hundred thirty-three (133) total Notices (down from 179 total Notices in September) alleged that phthalates in various plastic consumer products and consumer products with plastic components required a warning.
• BPA in Phone, Tablet and Other Technology Cases. Fifteen (15) Notices in October alleged that the BPA content of certain consumer products, including phone cases, required a warning.  The alleged BPA content of phone cases has come up from time to time over the last few months.
• Hexavalent Chromium in Leather Work Gloves & Footwear. A trend that has periodically arisen in the Notices re-emerged in August, September and October as well.  Four (4) Notices in October alleged that chromium in leather work gloves and footwear required a warning.
• Formaldehyde in Bed Sheet Sets. Seven (7) Notices alleged formaldehyde content in bed sheet sets required a Prop. 65 warning in October.  This increases these types of Notices from one Notice in August and one Notice in September, respectively.
• Fire Starting Products, Grills and Fire Pits. Plaintiff citizen enforcers sent four (4) Notices for multiple fire-starting products, grills and fire pits, alleging that the products emitted carbon monoxide and soot, and therefore required Prop. 65 warning labels.
• Lead in Fishing Weights. Reviving a trend from months past, in October plaintiff citizen enforcers sent two Notices alleging that the lead content in fishing weights required a warning label.

60-Day Notices for Personal Care Products

In October, trends in Notices alleging Prop. 65 violations in various personal care products continued.  Nine (9) Notices alleged that diethanolamine content in the following personal care products required a Prop. 65 warning:  mascara, eye cream, and skin moisturizer.  A separate Notice also alleged that the BPA content in nail polish required a warning.

What Should Personal Care, Food, Consumer Products 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.  In this capacity, it is certainly worthwhile for California businesses to monitor Prop. 65 notices and trends and to 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 those 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.