Proposition 65 Notices of the Month – Sept. 2020: Hundreds of Notices Allege Acrylamide in Snack Foods and Phthalates in Plastic Bags, Other Notices Target Personal Care Products

October 2020

Proposition 65: Trends and Highlights in September 2020

September 2020 Proposition 65 (“Prop. 65”) claims were, for the most part, “oldies but goodies.”  Plaintiff groups issued three hundred and forty (340) total Prop. 65 60-Day Notices of Violation (“Notices), over two hundred (200) 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 products expose California consumers to chemicals in quantities that could cause cancer or reproductive harm.  Notices for personal care products also continued to allege that diethaolamine and/or lead content in various products necessitated a Prop. 65 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 that citizen plaintiff groups target typically include lead, acrylamide, cadmium, arsenic and phthalates (Di(2-ethylhexyl) phthalate (“DEHP”), diisononyl phthalate (“DINP”) and Di-n-butyl phthalate (“DBP”)).  Furan, diethanolamine, bisphenol A (“BPA”),  hexavalent chromium and formaldehyde were also alleged to be present in harmful levels in products sold in California in September.

60-Day Notices for Food

In September, food Notices for acrylamide in crispy browned foods increased, and food Notices for alleged metals in seaweed and seafood continued to be prevalent.  The majority of food Notices fell within one of these three trend categories, described below, with the addition of one Notice for furan content.  Furan allegations have occurred consistently over the last few months, as well.

• Acrylamide in Pretzels, Chips, Cookies, Crackers, Cereal, Olives, and Almonds/Almond Products. A whopping fifty-nine (59) Notices alleged acrylamide in a variety of foods, ranging from pretzels, chips and snack foods to olives and almonds/almond products.  The majority of these Notices were for pretzels, chips, crackers, cookies and cereals.
• Metals in Seafood. Thirteen (13) Notices were sent alleging lead and arsenic in seafood products.  The products included salmon, shrimp, clams, squid and sardines.
• Metals in Seaweed. Seaweed Notices also continued in September.  Eighteen (18) total Notices (including some re-Notices) were sent alleging that seaweed products contained lead, cadmium and arsenic.
• Furan in Canned Goods. One additional Notice alleged that the furan content in  canned goods required a Prop. 65 warning.  Furan is suspected to form in food during  heat treatment techniques, including jarring, and canning.  Over the last several months, furan has been gathering momentum in food Notices and each month, at least one Notice usually alleges that the furan content in certain foods requires a warning.

60-Day Notices for Consumer Products

More Notices were sent for consumer products in September than for personal care and food products, with Notices for phthalates far outnumbering other Notices sent throughout the month.  Trends in consumer product Notices in September included the following, with the majority of Notices alleging that the phthalate content in consumer products required a warning.

• Phthalates (DEHP, DINP and DBP) in Plastic Bags, Cases, Pouches, Purses and Cushions. An incredible 179 total Notices in September alleged that phthalates in various plastic consumer products, bags, purses, cases and cushions, required a warning.
• BPA in Phone Cases. Four Notices in September 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. A trend that has periodically arisen in the Notices re-emerged in August and September.  Two (2) Notices in September and two (2) Notices in August alleged that chromium in leather work gloves required a warning.
• Formaldehyde in Bed Sheet Sets.  As was the case in August, one Notice in September alleged formaldehyde in bed sheet sets, a creative theory that will be worth watching in the coming months.

60-Day Notices for Personal Care Products

In September, the trend towards more Notices for personal care products continued.  As in August, several Notices alleged that diethanolamine content in personal care products required a warning.  Two (2) Notices alleged that aloe lotions contained diethanolamine.  Additionally, ten (10) Notices in September alleged that lead in diaper rash ointment required a warning.  One more Notice alleged that the lead content in baby powder required a warning.

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

Food, consumer, and personal care product and manufacturing companies doing business 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, to avoid receiving a Notice of Violation, and to avoid the threat of litigation in California state court.

Complying with Prop. 65 includes understanding California sales volume, testing products for common Prop. 65 chemicals, understanding potential exposure and consumption, and feeling comfortable with the results of an exposure assessment, which businesses can conduct to assess whether safe harbor levels are exceeded and a Prop. 65 warning label is required.  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 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.