/>iCalifornia’s Proposition 65 (“Prop. 65”), the Safe Drinking Water and Toxic Enforcement Act of 1986, requires, among other things, sellers of products to provide a “clear and reasonable warning” if use of the product results in a knowing and intentional exposure to one of more than 900 different chemicals “known to the State of California” to cause cancer or reproductive toxicity, which are included on The Proposition 65 List. For additional background information, see the Special Focus article, California's Proposition 65: A Regulatory Conundrum.
Because Prop. 65 permits enforcement of the law by private individuals (the so-called bounty hunter provision), this section of the statute has long been a source of significant claims and litigation in California. It has also gone a long way in helping to create a plaintiff’s bar that specializes in such lawsuits. This is because the statute allows recovery of attorney’s fees, in addition to the imposition of civil penalties as high as $2,500 per day per violation. Thus, the costs of litigation and settlement can be substantial.
The purpose of Keller and Heckman’s latest publication, Prop 65 Pulse, is to provide our readers with an idea of the ongoing trends in bounty hunter activity.
In December of 2024, product manufacturers, distributors, and retailers were the targets of 394 new Notices of Violation (“Notices”) and amended Notices, alleging a violation of Prop. 65 for failure to provide a warning for their products. This was based on the alleged presence of the following chemicals in these products. Noteworthy trends and categories from Notices sent in December 2024 are excerpted and discussed below. A complete list of Notices sent in December 2024 can be found on the California Attorney General’s website, located here: 60-Day Notice Search.
| Food and Drug | ||
| Product Category | Notice(s) | Alleged Chemicals |
| Fruits, Vegetables, and Mushrooms: Notices include farro porcini mushrooms, chopped spinach, capers, chili mango, flavored sunflower seeds, shiitake mushrooms, kale chips, flax seeds, artichoke quarters in brine, moringa, dried apricot, madras lentils, cactus chips, bamboo shoots, and stuffed manzanilla olives | 38 Notices | Lead and Lead Compounds, and Cadmium and Cadmium Compounds |
| Prepared Foods: Notices include soup bowls, noodle bowls, salt & vinegar potato chips, bundt cake mix, flatbread mix, granola bars, crackers, nut butter, vegetable biryani, vegan chips, mushroom ravioli, gluten-free tortilla wraps, and plant-based ground meat | 36 Notices | Lead and Lead Compounds, Cadmium, and Mercury |
| Seafood: Notices include Alaska pink salmon, tuna salad, mackerel in olive oil, sardines, seasoned squid, dried seaweed, fried anchovy, dried mackerel, ground shrimp, dried sea mustard seaweed, raw seaweed, and shrimp paste | 32 Notices | Lead and Lead Compounds, Cadmium and Cadmium Compounds, and Mercury |
| Dietary Supplements: Notices include plant-based protein shakes, green powder superfood, greens, protein powder, electrolyte formula beverages, pre-workout beverages, ginkgo biloba powder and tea, and spirulina powder | 26 Notices | Cadmium, Lead and Lead Compounds, Mercury and Mercury Compounds, and Perfluorooctanoic Acid (PFOA) |
| THC-containing Products: Notices include gummies, chocolates, soft gels, flavored beverages, and candies | 13 Notices | Delta-9-tetrahydrocannabinol |
| Sauces: Notices include red mole, aged balsamic vinegar, sundried tomato paste, and basil pesto sauce | 4 Notices | Lead and Lead Compounds |
| Packaged Liquids: Notices include vegetable stock and fruit-flavored beverages, and canned coconut water | 4 Notices | Perfluorononanoic Acid (PFNA) and its salts, Perfluorooctanoic Acid (PFOA), and Bisphenol A (BPA) |
| Cosmetics and Personal Care | ||
| Product Category | Notice(s) | Alleged Chemicals |
| Personal Care Items: Notices include hair color, aloe vera lotions, skin toners, spot treatments, face masks, vitamin C serum, enzyme scrub, body cleaners, eye serums and creams, hair color treatments, hair gels, body wash and foaming cleansers, pain relief cream, body glow, and squirt blood | 66 Notices | Diethanolamine |
| Cosmetics: Notices include mascara, cream makeup, matte lipstick, eyeliner pens, concealers, face primer, and cake makeup | 36 Notices | Diethanolamine |
| Personal Care Products: Notices include shave gel, shave foam, and volumizing foam | 3 Notices | Nitrous Oxide |
| Consumer Products | ||
| Product Category | Notice(s) | Alleged Chemicals |
| Plastic Pouches, Bags, and Accessories: Notices include children’s bags, beauty bags, bento bags, fanny packs, backpacks, wallets, picking bags, weight stabilizing bags, travel bags, rescuer guide packs, shoe covers, and cases for wheel sets | 26 Notices | Di(2-ethylhexyl)phthalate (DEHP), Diisononyl phthalate (DINP), and Di-n-butyl phthalate (DBP) |
| Miscellaneous Consumer Products: Notices include orthodontic kits, keychains, back scratchers, safety flags, vinyl banners, engraved wax sealers, steering wheel covers, lamps, stethoscopes, salt and pepper shakers with PVC components, luggage tag, and vinyl roll holders | 26 Notices | Di(2-ethylhexyl)phthalate (DEHP), Diisononyl phthalate (DINP), Di-n-butyl phthalate (DBP), and Lead |
| Hardware and Home Improvement Products: Notices include long handle hooks, garden hose splitters, coatings and paints, soldering wire, tools with PVC grips, pressure gauge, thermocouples, wing nuts, pop-up drains, propane tank adapter, and thread tape | 23 Notices | Lead and Lead Compounds, Di(2-ethylhexyl)phthalate (DEHP), Diisononyl phthalate (DINP), and Perfluorooctanoic Acid (PFOA) |
| Clothing and Shoes: Notices include gloves made with leather, bucket hats, sandals with PVC components, golf gloves, weatherproof jackets, slides, fuzzy socks, and ski pants | 22 Notices |
Di(2-ethylhexyl)phthalate (DEHP), Chromium (hexavalent compounds), Perfluorooctanoic Acid (PFOA), and Bisphenol A (BPA) |
| Glassware, Metals, and Ceramics: Notices include mugs, glass sets, blue multi-colored glass, metal and glass organizers, spoon rests, shakers, and soap dispenser/sponge holders | 19 Notices | Lead and Lead Compounds |
| Miscellaneous Consumer Products: Notices include shower curtains, tablecloths, pillows, pet beds, athletic bandages, and outdoor cushions | 10 Notices | Perfluorooctanoic Acid (PFOA) |
| Hobby Items: Notices include artist paste paints, art panels, lens mounts, pickleball paddles, jump rope, molding cream, and golf storage boot | 8 Notices | Di(2-ethylhexyl)phthalate (DEHP), Di-n-butyl phthalate (DBP), Lead, Diethanolamine, and Perfluorooctanoic Acid (PFOA) |
| Coal Tar Epoxy | 1 Notice | Bisphenol A (BPA), Epichlorohydrin, Ethylbenzene, soots, tar and mineral oils (coal tar) |
There are numerous defenses to Prop. 65 claims, and proactive measures that industry can take prior to receiving a Prop. 65 Notice in the first place. Keller and Heckman attorneys have extensive experience in defense of Prop. 65 claims and in all aspects of Prop. 65 compliance and risk management. We provide tailored Proposition 65 services to a wide range of industries, including food and beverage, personal care, consumer products, chemical products, e-vapor and tobacco products, household products, plastics and rubber, and retail distribution.
