/>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 March of 2024, product manufacturers, distributors, and retailers were the targets of over 443 new Notices of Violation (“Notices”) and amended Notices, alleging a violation of Prop. 65 for failure to provide a warning for their products. Notices were based on the alleged presence of the following chemicals in these products. Noteworthy trends and categories from Notices sent in March 2024 are excerpted and discussed below. A complete list of Notices sent in March 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 superfood smoothie kits, herbal supplements, moringa powder, algae powder, maca root powder, tienchi powder, botanical water, protein powder, agar-agar, lactation supplements | 45+ Notices | Cadmium, Lead and Lead Compounds, Mercury and Mercury Compounds |
| Seafood: Notices include tuna, sardines, sandless laver, dried squid, sea scallops, mussels in sauce, dried seaweed, shrimp, dried croaker, and fish balls | 30+ Notices | Lead and Lead Compounds, Cadmium and Cadmium Compounds |
| Fruits and Vegetables: Notices include spinach, dried cantaloupe, dried pineapple, sun-dried tomatoes, dried thistle, chacon maca, ginger, and chai tea | 25+ Notices | Lead and Lead Compounds, Cadmium and Cadmium Compounds |
| Spices and Sauces: Notices include mole, ground cinnamon, mulling spice, curry paste, adobo sauce, and romesco dip | 9 Notices | Lead and Lead Compounds, and Cadmium |
| Assorted Prepared Food and Snacks: Notices include rice paper, blueberry muffins, hot cocoa, banana snack bars, cookies, beet and yacon crisps, trail mix, and plant-based meats | 50+ Notices | Lead and Lead Compounds, Cadmium, and Cadmium Compounds |
| Mushrooms: Notices include dried mushrooms, shiitake, wild forest, porcini, mushroom patties and balls | 10 Notices | Mercury, Lead and Lead Compounds, and Cadmium |
Cosmetics and Personal Care |
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| Product Category | Notice(s) | Alleged Chemicals |
| Powdered Cosmetics and Hairspray: Notices include compact finishing powder, bronzing powder, eyeshadow palettes, root coverup, blush, setting powder, and eyebrow powder | 40+ Notices | Titanium Dioxide (airborne, unbound particles of respirable size) |
| Personal Care Items: Notices include mascara, healing clay, shoulder massagers, lotion, skin lightening creams, shampoo, eyebrow kits, rosacea gel, and facial scrubs | 19 Notices | Diethanolamine, Di(2-ethylhexyl)phthalate (DEHP), Lead, Mercury, Mercury and Mercury Compounds,1,4-Dioxane, Di-isodecyl phthalate (DIDP), and Diisononyl phthalate (DINP) |
Consumer Products |
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| Product Category | Notice(s) | Alleged Chemicals |
| Shower Curtain Liners and Shower Caps | 4 Notices | Perfluorooctanoic Acid (PFOA) |
| Clothing and Shoes: Notices include leather gloves, safety vest, sandals with PVC components, jelly sandals, hats, and fish belts | 9 Notices | Di(2-ethylhexyl)phthalate (DEHP), Chromium (hexavalent compounds), Lead |
| Weather-proof Clothing: Notices include gloves, jackets, rain pants, sports wraps, and umbrellas | 8 Notices | Perfluorooctanoic Acid (PFOA) |
| Socks and Clear Heels | 6 Notices | Bisphenol A (BPA) |
| Plastic Pouches, Bags, and Accessories: Notices include toiletry bags, phone cases, travel cases and organizers, faux leather wallets, eyeglass holders, badge holders, and purses | 30+ Notices | Di(2-ethylhexyl)phthalate (DEHP), Diisononyl phthalate (DINP), Di-n-butyl phthalate (DBP), and Lead |
| Glassware and Ceramics: Notices include mugs, salt and pepper shakers, dinner plates, storage jars, pet bowls, spoon rests, jewelry catchall trays, glass ornaments, and wine glasses | 40+ Notices | Lead and Lead Compounds |
| Hardware and Home Improvement Products: Notices include elbow conduits, anchor bolts, brass bars, cabinet knobs, roof flashing, solder, brass switches, and faucet seats | 30+ Notices | Lead and Di(2-ethylhexyl)phthalate (DEHP) |
| Other Consumer Products: Notices include photo albums, dumbbells and kettle bells, candle holders, napkin holders, bed air mattresses, and a garage bar stool | 50+ Notices |
Di(2-ethylhexyl)phthalate (DEHP), Diisononyl phthalate (DINP), Di-n-butyl phthalate (DBP), and Lead |
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.
