/>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 January of 2024, product manufacturers, distributors, and retailers were the targets of over 510 new Notices of Violation (“Notices”) and amended Notices, alleging a violation of Prop. 65 for failure to provide a warning for their products. The amount of Notice activity in January of 2024 far exceeds any amount of Notice activity in any month in 2023. Notices were based on the alleged presence of the following chemicals in these products. Noteworthy trends and categories from Notices sent in January 2024 are excerpted and discussed below. A complete list of Notices sent in January 2024 can be found on the California Attorney General’s website, located here: 60-Day Notice Search.
Food and Drug |
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| Product Category | Notice(s) | Alleged Chemicals |
| Dietary Supplements: Notices include protein powder and plant protein powder, moringa powder, wheat grass powder, chlorella, beet root, psyllium husk powder, and spirulina powder | 50+ Notices | Cadmium, Mercury and Mercury Compounds, Lead and Lead Compounds, Perfluorononanoic Acid (PFNA) and its salts, Perfluorooctanoic Acid (PFOA) |
| Seafood: Notices include dried squid, sardines, crab cakes, mussels, calamari, dried seamoss, octopus, crawfish, and clams | 10 Notices | Lead and Lead Compounds, Cadmium and Cadmium Compounds |
| Fruits and Vegetables: Notices include apple sauce, celery juice, black fungus, pickled turnips, dried shiitake mushrooms, fresh spinach, kale, and sunflower seeds | 20+ Notices | Lead and Lead Compounds, Cadmium and Cadmium Compounds, Mercury |
| Spices and Sauces: Notices include mulling spice, masala seasoning, garlic powder, sumac, turmeric, Himalayan salt, adobo paste, mole sauce, date paste, and apricot paste | 30+ Notices | Lead and Lead Compounds, Arsenic (inorganic arsenic compounds), Arsenic (inorganic oxides) |
| Assorted Prepared Food and Snacks: Notices include oatmeal cinnamon bars, peanut butter, pickled vegetables, sugared donuts, hamburger buns, palak paneer, and dipped banana bites | 20 Notices | Lead and Lead Compounds, Cadmium and Cadmium Compounds |
| Noodles and Rice: Notices include protein pasta, dry noodles, rice paper, and coconut curry noodles | 6 Notices | Cadmium and Cadmium Compounds, Lead and Lead Compounds |
Cosmetics and Personal Care |
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| Product Category | Notice(s) | Alleged Chemicals |
| Powdered Cosmetics: Notices include compact finishing powder, eyeshadow palettes, blush, and highlighter | 19 Notices | Titanium Dioxide (airborne, unbound particles of respirable size) |
| Personal Care: Notices include aloe vera gel, baby lotion, sheet masks, shave foam, hand creams, and skin-lightening creams | 11 Notices | Diethanolamine, Mercury and Mercury Compounds |
Consumer Products |
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| Product Category | Notice(s) | Alleged Chemicals |
| Cookware: Notices include teapots, colanders, strainers, roasting forks, and copper pitchers | 6 Notices | Lead and Lead Compounds, Di-n-butyl phthalate (DBP), and Di(2-ethylhexyl)phthalate (DEHP) |
| Clothing and Footwear: Notices include slides, gloves, belts, and hats | 10 Notices | Di(2-ethylhexyl)phthalate (DEHP), and Di-n-butyl phthalate (DBP) |
| Shoes | 2 Notices | Bisphenol A (BPA) |
| Plastic Pouches, Bags, and Accessories: Notices include storage bags, backpacks, purses, wallets, cases, and pouches | 50+ Notices | Di(2-ethylhexyl)phthalate (DEHP), and Diisononyl phthalate (DINP) |
| Glassware and Ceramics: Notices include mugs, salt & pepper shakers, mirrors, frames, trays, candleholders, crystal glasses, and cookie jars | 40+ Notices | Lead and Lead Compounds, and Di-n-butyl phthalate (DBP) |
| Pet Supplies: Notices include leashes, toy stockings, pet toys, and dog boots | 6 Notices | Perfluorooctanoic Acid (PFOA), Di(2-ethylhexyl)phthalate (DEHP), and Lead |
| Hobby Gear: Notices include crochet hook organizers, dumbbells, paint brushes, and snorkel systems | 10 Notices | Bisphenol A (BPA), Diisononyl phthalate (DINP), Di(2-ethylhexyl)phthalate (DEHP), and Lead |
| Hardware: Notices include tools with vinyl or PVC grips, locks, knobs, pulls, valves, flashing, and tape | 20+ Notices | Di(2-ethylhexyl)phthalate (DEHP) and Lead |
Environmental |
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| Notices include discharges into drinking water | 1 Notice | Perfluorooctane Sulfonate (PFOS) |
Other |
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| Product Category | Notice(s) | Alleged Chemicals |
| Unleaded Gasoline | 150+ Notices | Unleaded Gasoline (wholly vaporized) |
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.
