Surprising Surge in Sauces Tops Prop. 65 Food Notices in Third Quarter 2023
Proposition 65: Quarterly Highlights (October 2023)
Downey Brand’s latest roundup of Proposition 65 Notices of Violation (“Notices”) summarizes Notices filed in the third quarter of 2023. Citizen plaintiff groups filed one thousand seventy-two (1,072) total Notices, which was approximately 100 more than the third quarter of 2022.
Per usual, seafood products remain a key target of plaintiff groups. Ceramics and glassware also continue to be popular targets. With the addition of certain per- and polyfluoroalkyl substances (PFAS) like PFOA and PFOS as carcinogens to the Prop. 65 list in 2021 and 2022, there has also been an emerging set of Notices across various product categories as plaintiff groups continue to test the waters with respect to Prop. 65 enforcement actions alleging PFAS. Whereas in the first two quarters of 2023, plaintiff groups focused on PFAS in apparel and general consumer products, last quarter plaintiff groups also alleged PFAS in certain products in the food and personal care categories.
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 2023 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
- Metals in Seafood Products. Plaintiff groups issued 84 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, sardines, octopus, shellfish, salmon, and herring.
- Metals in Fruits and Vegetables. There were 47 Notices alleging metals such as lead, cadmium, and arsenic in various fruit and vegetable products. The vast majority of Notices relating to vegetable products were for dried mushrooms. Specific fruit products included dried strawberries, kiwi, mango, ginger, apricots, and capers.
- Metals and PFOA in Dietary Supplements. As with prior updates, dietary supplements remained another target in the third quarter of 2023. There were 84 Notices alleging heavy metals including lead, cadmium, and mercury in various dietary supplements, including protein powders and protein shakes, and that these products required Prop. 65 warning labels. Additionally, there was one Notice for PFOA in dietary supplements.
- Lead in Various Foods. Many Notices alleged that a wide variety of foods contained high levels of lead and required a Prop. 65 warning. This included 13 Notices for seeds like flaxseed, granola, cereal products, and protein/nutrition bars; 29 Notices for noodle products like pastas and ramen; 17 Notices for chocolate, chips, crackers, cookies, and candy; 53 Notices for sauces and pastes like pesto, curry, mole, and chili sauce; 7 Notices for soups; 11 Notices for spices; 1 Notice for rice; 9 Notices for bread and baking products; and over 40 more Notices for other various food products. This is significantly more Notices for the sauce and paste categories than previously noted in recent quarters. For example, in the first two quarters of 2023 combined, there were only about 12 Notices for sauces and pastes. The sauces and pastes that topped the list in the third quarter are: tomato paste, curry paste, mole, and pesto.
- Acrylamide. The issue of the acrylamide Prop. 65 cancer warning label is presently being litigated in the U.S. District Court for the Eastern District of California and U.S. Court of Appeals for the Ninth Circuit, in Cal. Chamber of Commerce v. Becerra, Case No. 2:19-cv-02019. Last year, the Ninth Circuit upheld the district court’s issuance of a preliminary injunction barring new acrylamide/cancer warning label lawsuits. In April 2023, the United States Supreme Court declined to review the issue, meaning the preliminary injunction remains in place and private enforcers are still barred from filing new notices relating to acrylamide in food and beverage products while the case is pending on the merits. The California Attorney General’s website discusses the Prop. 65 acrylamide litigation and Ninth Circuit appeal at: https://oag.ca.gov/prop65.
In addition, and in response to the CalChamber case, there are two relatively new regulations from the Office of Environmental Health Hazard Assessment (“OEHHA”) relating to Prop. 65 warnings for acrylamide. One of these regulations creates new, alternative warning language that states acrylamide is a “probable human carcinogen” and that “many factors affect your cancer risk.” See 27 CCR § 25607.2(b). The other new acrylamide regulation excepts acrylamide levels in certain foods from being considered “exposures” that require Prop. 65 warnings. The regulation identifies particular foods and certain acrylamide levels that are excepted. See 27 CCR § 25506.
60-Day Notices for Personal Care Products
Personal care product Notices in the third quarter of 2023 focused on cosmetic products like eyeshadow, bronzer, and other powder-based cosmetics.
- Titanium Dioxide and Phthalates in Cosmetic Products. 52 Notices were sent for titanium dioxide in various cosmetic products such as foundation, eyeshadows, powders, and blush.
- DEHP in Cosmetic Storage, Tools, and Accessories. There were 27 Notices alleging DEHP in various cosmetic accessories including cosmetic bags, makeup brushes, travel pouches, and makeup tool organizers.
- Diethanolamine and PFOA in Shower Products. Citizen plaintiff groups filed only 1 Notice alleging diethanolamine in a shower product – a 3-in-1 hair, face, and body wash. There was an additional Notice alleging PFOA in shower caps this quarter as well.
- Diethanolamine in Ointments, Lotions, and Masks. Another 6 Notices alleged diethanolamine in miscellaneous topical products such as ointments, lotions, and sunscreens.
- PFOA in Bandages. Another Notice alleged PFOA in athletic bandages.
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 are costly, as are Prop. 65 disputes, which can subject potential defendants 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.
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.
Patrick Veasy is counsel 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.