/>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 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 |
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| 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 |
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| 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 |
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| 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) |
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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) |
Other |
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| 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.
