Proposition 65 Notices of the Month April 2021: Overall Declines in the Number of Food Notices for Acrylamide and Heavy Metals, and in the Number of…

In April, much to the relief of food and consumer products industries, Proposition 65 (Prop. 65) citizen plaintiff groups sent roughly half of the number of 60-Day Notices of Violation (Notices) that they sent in prior months. More specifically, citizen plaintiffs sent a total of one hundred fifty-three (153) Notices in April, and have, over the past several years, sent roughly three hundred (300) or so Notices each month.

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, mercury, and phthalates (Di(2-ethylhexyl) phthalate (DEHP), diisononyl phthalate (DINP) and Di-n-butyl phthalate (DBP).

The April reduction in Notice numbers is attributable to citizen plaintiff groups sending approximately half of the total number of consumer product Notices for phthalates previously sent in March (62 Notices sent in April and 122 Notices sent in March) and approximately half of the number of total Notices for heavy metals previously sent in March (60 Notices sent in April and 116 Notices sent in March).

Citizen plaintiff groups also substantially reduced the number of Notices they sent alleging violations of Prop. 65s warning requirement for acrylamide, likely following the recent court ruling banning the filing of new Prop. 65 lawsuits related to cancer warning labels. On March 30, 2021, the U.S. District Court for the Eastern District of California preliminarily enjoined any person from filing new lawsuits seeking cancer warnings for acrylamide on food and beverage products sold in California. (See Cal. Chamber of Commerce v. Becerra, Case No. 2:19-cv-02019 (E.D. Cal. March 30, 2021).) Although the case has been appealed to the Ninth Circuit, at least for now, the ruling ties the hands of citizen plaintiffs with respect to future Notices alleging that food and beverage products containing acrylamide require a Prop. 65 warning.

For the Notices that were sent in April, Plaintiff groups continued to allege that various chemicals in foods and consumer products require Prop. 65 warning labels because the products use or consumption exposes California consumers to chemicals in quantities that could cause cancer or reproductive harm. A discussion of Notice trends in April is below.

60-Day Notices for Food

April food Notice trends changed somewhat given the reduction in the number of acrylamide

Notices discussed previously. The majority of food Notices in April related to allegations of heavy metals, primarily lead, in seafood and dietary supplements. Examples of noteworthy categories of food Notices are as follows.

60-Day Notices for Consumer Products

Again, the majority of the consumer product Notices in April related to alleged phthalataes (DEHP, DINP and DBP) in largely pliable plastic products, though, as mentioned previously, this number was down to a total of 62 Notices in April, from 122 total Notices in March. Examples of trends in consumer product notices for all chemicals in April include:

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

Prop. 65 trends evolve, change, and shift each month, and the month of April is no exception. The trends in Notices depend on the interests of particular plaintiff groups in certain chemicals and products, the concentrations of certain chemicals in easily accessible products, and on the prior success of citizen plaintiffs in enforcing Prop. 65 in a given area. California businesses should monitor Prop. 65 notices and trends, use the Prop. 65 warning language on California products to avoid receiving a Notice of Violation when necessary, and to try and avoid the threat of litigation in California state court. In particular, food companies with products containing acrylamide should monitor the status of the California litigation relating to cancer warning labels for acrylamide in order to assess their risk and the likelihood of receiving a Notice in the future.

Prop. 65 is a substantial risk issue for companies selling products in California, particularly if the products contain the common Prop. 65 chemicals we discuss here. In addition to the costs of compliance and labeling associated with the regulation, a Prop. 65 dispute can subject a potential defendant to attorneys fees in both defending the claim, and, if the claim is resolved in settlement, the plaintiffs 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 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.

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Proposition 65 Notices of the Month April 2021: Overall Declines in the Number of Food Notices for Acrylamide and Heavy Metals, and in the Number of...