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September 2023 Bounty Hunter Plaintiff Claims
Monday, October 16, 2023

California’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 September of 2023, product manufacturers, distributors, and retailers were the targets of over 294 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 September 2023 are excerpted and discussed below. A complete list of Notices sent in September 2023 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
Dietary Supplements: Notices include protein powder, ashwagandha powder, flax seed, matcha powder, and hibiscus powder 30+ Notices

Mercury and Mercury Compounds, Lead and Lead Compounds, Perfluorooctanoic Acid (PFOA), and Cadmium

Seafood: Notices include shrimp, crab, abalone, squid, tuna, and sardines 16 Notices Cadmium and Cadmium Compounds, Lead and Lead Compounds, Arsenic, and Mercury
Pasta and Noodles 5 Notices Lead
Fruits and Vegetables: Notices include dried mushrooms, cassava yuca, dried seamoss, ginger, mango slices, sundried tomatoes, and spices 11 Notices Lead and Lead Compounds
Chutneys, Moles, Pastes, and Sauces 10 Notices Lead and Lead Compounds, Cadmium
Assorted Prepared Foods: Notices include wafer roles, cereal, bagels, biscuits, cookies, vermicelli soups, and stuffed vine leaves 24 Notices Cadmium, Lead

Cosmetics and Personal Care

Product Category Notice(s) Alleged Chemicals
Powdered Cosmetics: Notices include matte eye shadow, loose powder, and eyeshadow color palettes 4 Notices Titanium Dioxide (airborne, unbound particles of respirable size)
Lotions, Sun Relief Gels, and Costume Blood 10 Notices Diethanolamine and Di(2-Ethylhexyl)Phthalate DEHP
Progesterone Supplement Cream 1 Notice Progesterone

Consumer Products

Product Category Notice(s) Alleged Chemicals
Leather Footwear and Accessories: Notices include gloves, belts, boots, and wallets 10 Notices Chromium (hexavalent compounds)
Plastic Pouches, Bags, and Accessories: Notices include backpacks, bags, cases, handbags, wallets, backpacks, organizers, mats, sandals, and other small consumer products 30+ Notices Di(2-Ethylhexyl)Phthalate (DEHP) and Diisononyl Phthalate (DINP)
Clothing: Notices include vinyl boots, shoes, sandals, and gloves 7 Notices Di(2-Ethylhexyl)Phthalate (DEHP) and Diisononyl Phthalate (DINP)
Pack Jackets and Toiletry Bags 2 Notices Perfluorooctanoic Acid (PFOA)

Sports Clothing: Notices include sports bras, socks, and athletic shorts

4 Notices Bisphenol A (BPA)
Glassware and Ceramics: Notices include glassware and ceramics with exterior designs 16 Notices Perfluorooctanoic Acid (PFOA)
Tools and Hardware: Notices include hammers, electrical tape, tools with vinyl grips, screwdrivers, and pliers 12 Notices Di(2-Ethylhexyl)Phthalate (DEHP), Di-n-butyl Phthalate (DBP), and Lead
PTFE Tape and Thread Seal Tapes 3 Notices Perfluorooctanoic Acid (PFOA)


Product Category Notice(s) Alleged Chemicals
Unleaded Gasoline 15+ 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. 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 Prop. 65 services to a wide range of industries, including food and beverage, cosmetics and personal care, consumer products, chemical products, e-vapor and tobacco products, household products, plastics and rubber, and retail distribution.

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