July 2021 was a noteworthy month for newly initiated Proposition 65 (“Prop. 65”) claims as reflected in 60-day Notices of Violation (“Notices”). While last month’s total number of Notices (two hundred forty-eight (248)) was less than the number that plaintiff groups usually issue in a given month (typically over 300 Notices), July Notices were more varied than in past months. More specifically, a number of Notices involved new and creative claims for certain products and put other less common chemicals at issue.

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 each of the Notices described below, plaintiff groups 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.

60-Day Notices for Food

As is typically common, the majority of food Notices in July related to allegations of heavy metals (lead, arsenic, and cadmium) in foods, along with some allegations regarding alleged acrylamide in foods. These Notices were different, however, because they alleged that some new types of products contained metals and/or acrylamide.[1] New types of products include protein powders, tea, asparagus, and jalapeños. Noteworthy categories of food Notices from July are as follows:

• Metals in Seaweed & Seafood. Over twenty-five (25) Notices alleged that lead, mercury, cadmium, and arsenic in seaweed and seafood products, including dried kelp, seafood salad, calamari, ground shrimp, squid, anchovy, and other similar products required a Prop. 65 warning label.
• Metals in Dietary Supplements. Thirteen (13) Notices alleged that lead and other heavy metals in dietary supplements required a warning label. Some of these Notices were “re-Notices” to add new parties in the supply chain to the case.
• Metals in Fruits and Vegetables. Over fourteen (14) Notices alleged that lead and cadmium in various types of fruit and vegetable products required a Prop. 65 warning label. These products include: dried kale, asparagus, jalapeños, fruit cocktail, dried apricots, and diced pears.
• Metals in Other Foods Including Spices, Tortilla Chips, Snack Bars, Nuts, Pasta, Protein Powders, and Tea. Over twenty (20) Notices for other foods including tortilla chips, pumpkin seeds, sunflower seeds, trail mix, green tea, tri-color pasta, protein powders, various protein and snack bars, and other food products alleged that warning labels were required for metals in the foods.
• Acrylamide in Crispy and Roasted Foods. Citizen plaintiff groups sent twenty-nine (29) acrylamide Notices in July for products including molasses, crackers, cookies, snack foods, and waffles.

60-Day Notices for Consumer Products

Once again, the majority of consumer product Notices in July related to alleged phthalates (DEHP, DINP and DBP) in largely pliable plastic products. BPA claims also picked up steam.  Examples are as follows:

• Phthalates (DEHP, DINP and DBP) in Plastic Products. Plaintiff groups sent ninety-seven (97) Notices in July for alleged phthalates in consumer products, including the usual cosmetics bag/pouches, as well as luggage, chairs, jump ropes, shower curtains, plastic tool grips, and other miscellaneous pliable plastic items.
• Bisphenol A (“BPA”) in Receipt Paper, Face Shields, and Other Plastic Items. Nine (9) Notices alleged that BPA in receipt paper, face shields, and other plastic consumer products required that a warning label be placed on the products.

60-Day Notices for Personal Care Products

Prop. 65 claims for personal care products in July were creative and numerous as compared to prior months. As described below, plaintiff groups sent Notices relating to alleged chemicals in a number of personal care products, including CBD oil, cosmetics, hand sanitizers, and sunscreen.

• Delta-9-tetrahydrocannabinol in CBD Oil. Two (2) Notices alleged that delta-9-tetrahydrocannabinol in CBD Oil products required Prop. 65 warning labels.
• Diethanolamine, Acetaldehyde, and Benzene in Hand Sanitizer. Five (5) total Notices alleged that various chemicals in hand sanitizer required Prop. 65 warning labels to be placed on the products. Given the volume of hand sanitizer sold in California at present—and national discussion of product recalls related to benzene and other chemicals—we expect these claims to continue and increase in the future.
• Titanium Dioxide in Powered Cosmetics. Five (5) total notices alleged that titanium dioxide in powered cosmetics, including blushes, required a Prop. 65 warning label. Titanium dioxide claims have been around for a number of years. They tend to wax and wane and are worth watching for those in the cosmetics business.
• Diethanolamine in Sunscreen and Hand Cream and Hand Gel. Seven (7) Notices alleged that diethanolamine in sunscreen, sanitizer, hand cream, and other similar personal care products required a Prop. 65 warning label.
• Benzophenone in Sunscreen. Two (2) Notices alleged benzophenone in sunscreen required a Prop. 65 warning label. These Notices will likely increase in volume given the national attention currently on sunscreen and its chemical content, including but not limited to benzophenone.

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

Prop. 65 trends change each month. The trends in Notices depend on the state of the law at the time the Notice is sent, corresponding interests of particular plaintiff groups, as well as the concentrations of chemicals in easily accessible products and the prior successes of citizen plaintiffs in enforcing Prop. 65 in a given area. In July, the number of personal care product Notices increased, seemingly in tandem with product recalls and publicity surrounding certain chemicals and products occurring on the national stage, including alleged benzene and benzophenone in sunscreens and hand sanitizers.

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. Food companies with products containing acrylamide should monitor the status of the California litigation noted above relating to cancer warning labels for acrylamide in order to assess their risk and the likelihood of receiving a Notice in the future. Personal care product companies would be well served to monitor the national discussion regarding the alleged harm of certain chemicals in sunscreen and hand sanitizers as Prop. 65 plaintiffs appear to be following and tracking these matters in their Prop. 65 Notices.

Prop. 65 is a substantial risk issue for companies selling products in California, particularly if the products contain the 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 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 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] Regarding acrylamide and as discussed in previous monthly updates, the Ninth Circuit Court of Appeals stayed the preliminary injunction in Cal. Chamber of Commerce v. Becerra, Case No. 2:19-cv-02019 (E.D. Cal. March 30, 2021) that prohibited the filing of new acrylamide litigation.  The California Attorney General’s website provides an overview of the current status of the Prop. 65 acrylamide litigation and Ninth Circuit appeal at: https://oag.ca.gov/prop65.

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