Proposition 65 Notices of the Month October 2021: Wildlife & Duck Calls, Socks, Spices, Fruits & Vegetables, and Pasta – JD Supra

In October 2021, citizen plaintiff groups issued more than two hundred fifty (250) new Proposition 65 (Prop. 65) Notices of Violation (Notices), including some amended Notices to add additional products and/or new alleged violators of the regulation, as well as some withdrawals of existing Notices. As we describe below, October of 2021 stood out in the Prop. 65 trend space because of the uptick of claims of alleged metals in different types of foods and dietary supplements. While claims that alleged acrylamide in food products decreased, metals claims for food products increased. Likewise, claims regarding alleged phthalates in consumer products remained strong.

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).

In the Notices described below, plaintiff groups allege that various chemicals in food, consumer products, and personal care 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.

60-Day Notices for Food

In October, the majority of Notices sent by plaintiff citizen enforcers related to allegations that alleged metals in dietary supplements and different types of foods required Prop. 65 warning labels. While acrylamide Notices decreased, claims of heavy metal content in foods increased. A discussion of these trends is below.

60-Day Notices for Consumer Products

As has been the trend in consumer products in Prop. 65 for a number of years now, consumer product Notices in October related to alleged phthalates (DEHP, DINP and DBP) in largely pliable plastic products and alleged lead in ceramics and hardware. Notices regarding alleged Bisphenol A (BPA) in certain types of consumer products were also significant. Examples of consumer products trends are as follows:

60-Day Notices for Personal Care Products

Finally, an amendment to an existing Prop. 65 Notice was issued for alleged PFOA, or Perfluorooctanoic Acid, in various personal care products. PFOA regulation and litigation have been a significant trend in the worldwide chemical regulatory space in the past several years. Its noteworthy that PFOA claims are also arising in the Prop. 65 context.

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 particular plaintiff groups, as well as the concentrations of chemicals in easily accessible products. 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, 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 for those down 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.

[1] The issue of the acrylamide 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 California Attorney Generals website provides discussion of the Prop. 65 acrylamide litigation and Ninth Circuit appeal at: https://oag.ca.gov/prop65.

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Proposition 65 Notices of the Month October 2021: Wildlife & Duck Calls, Socks, Spices, Fruits & Vegetables, and Pasta - JD Supra