Proposition 65 Quarterly Notice – Third Quarter 2022: Citizen Plaintiff Groups Continue to Pursue Seafood, Ceramics, and Personal Care Products

November 2022

Proposition 65: Trends and Highlights July 2022-September 2022

Please note that Downey Brand’s Proposition 65 (“Prop. 65”) monthly trends and highlights legal alert is moving to a quarterly format.

Last quarter, citizen plaintiff groups issued nine hundred twenty-seven (927) total Notices of Violation (“Notices”), which was over one hundred fifty (150) more than the second quarter of 2022. As reported in Downey Brand’s July monthly update, seafood products remain a key target of these Notices. Ceramics and glassware also continue to gain a lot of attention from citizen groups. An emerging subset of Notices focused on the Prop. 65 listed chemical methyl eugenol in spices, popular holiday ingredients, and some personal care products. This alert discusses these types of claims and other trends in Prop. 65 Notices for the months of July through September 2022.

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”).

Notices from the third quarter of 2022 involve allegations 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

A trend that increasingly focused on seafood products continued in the third quarter of 2022. During the third quarter, the majority of Notices plaintiff citizen enforcers sent related to allegations that alleged lead and other heavy metals like cadmium in numerous types of foods required Prop. 65 warning labels including seafood products and fruits and vegetables. Plaintiff groups also sent several Notices regarding alleged acrylamide in roasted or toasted foods.

• Metals in Seafood Products. Plaintiff groups issued eighty-two (82) total Notices for various seafood products that allegedly contained various metals such as lead, cadmium, as well as arsenic. Specific products were diverse and included seaweed, shrimp, mussels, squid, scallops, anchovy, octopus, and crayfish.
• Lead in Various Foods. Claims regarding lead in various food products remained a popular target.Plaintiff citizen enforcers sent one hundred and twenty-eight (128) total Notices alleging a wide variety of foods contained high levels of lead and required a Prop. 65 warning. These foods included ramen, burritos, curry, pasta/noodles, and chocolate products.
• Metals in Dietary Supplements. As with prior updates, dietary supplements remained another target this quarter. Forty-three (43) Notices alleged that heavy metals including lead and cadmium in various dietary supplements required a Prop. 65 warning label.
• Acrylamide in Crispy and Roasted Foods.[1]^{, [2]}Plaintiffs also sent fifteen (15) Notices for foods that allegedly contained acrylamide at levels that required a Prop. 65 warning label. These foods included chips, cookies, popcorn, and crackers.
• Methyl Eugenol in Spices and Spices and Spiced Foods. Finally, there were ten notices for alleged methyl eugenol in products like pumpkin pie filling and spice, nutmeg, and allspice. Methyl eugenol was listed on the Prop. 65 List as a carcinogen in 2001. At present, it does not have a safe harbor level. It is a natural plant product often used in spices and for flavoring.

60-Day Notices for Personal Care Products

Personal care product Notices in June 2022 focused on cosmetic products, shower products, and topical ointments, lotions, and masks.

• Titanium Dioxide and Phthalates in Cosmetic Products.Seventy-seven (77) Notices were sent for titanium dioxide, DINP, and DEHP in various cosmetic products such as foundation, eyeshadows, powders, and blush.
• Cocamide diethanolamine in Shower Products. Citizen plaintiff groups issued thirteen (13) Notices for shower products allegedly containing coconut oil diethanolamine condensate (cocamide diethanolamine), diethanolamine, and methyl eugenol. Products included shampoo and conditioner, shower gel, and cleansers.
• Diethanolamine in Ointments, Lotions, and Masks. Another thirteen (13) Notices for miscellaneous topical products such as ointments, lotions, and masks alleged diethanolamine, DINP, and methyl eugenol.

60-Day Notices for Consumer Products

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

• Lead in Ceramics and Glassware. One hundred and ninety-three (193) 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 two hundred and sixty-four (264) Notices alleging that various phthalates in pliable plastic products required Prop. 65 warning labels. The products at issue are diverse, but included wallets, helmets, lanyards, pencil cases, handbags, and vinyl products.

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 and chemical listings and classifications on the Prop. 65 list. 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.

Alexandra “Ally” Lizano is an associate in Downey Brand’s Sacramento office. Ally routinely works on matters involving environmental enforcement defense, and toxic tort litigation, including Proposition 65. Ally can be reached at [email protected], or via her 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.

[2] The Office of Administrative Law approved new warning language for acrylamide on October 26, 2022. The new warning language will go into effect on January 1, 2023.