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 2023, product manufacturers, distributors, and retailers were the targets of 344 new Notices of Violation (“Notices”) and amended Notices, and amended Notices, alleging a violation of Prop. 65 for failure to provide a warning for their products, including some modifications to add parties or products to existing Notices, and some withdrawals. This was based on the alleged presence of the following chemicals in these products. Noteworthy trends and categories from Notices sent in December 2023 are excerpted and discussed below. A complete list of Notices sent in December 2023 can be found on the California Attorney General’s website, located here: 60-Day Notice Search.
Notices include discharges into drinking water and bystander exposure from use of soil fumigants
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, ashwagandha powder, chlorella, cellulose fiber, collagen powder, and spirulina powder | 50+ Notices | Cadmium, Lead and Lead Compounds |
| Seafood: Notices include dried shrimp, anchovy paste, sea scallops, seaweed chips, clams, sardines, smoked mussels, and sea moss powder | 10 Notices | Lead and Lead Compounds, Cadmium and Cadmium Compounds |
| Fruits and Vegetables: Notices include chickpea rice, tri-color rotini, spaghetti, and mac & cheese shells | 20+ Notices | Lead and Lead Compounds, Cadmium and Cadmium Compounds |
| Spices and Sauces: Notices include turmeric, garlic chutney, olive pesto, oregano, Texas chili mix, hot pepper sauce, curry paste, harissa, paprika, and chili powder | 10+ Notices | Lead and Lead Compounds, Arsenic (inorganic arsenic compounds), Arsenic (inorganic oxides) |
| Chutneys, Moles, Pastes, and Sauces | 7 Notices | Lead and Lead Compounds |
| Assorted Prepared Food and Snacks: Notices include cactus nopalitos, crackers, spring rolls, protein chips, pizza protein puffs, beet chips, plant-based queso, bone broth soups, and pancake and waffle mix | 19 Notices | Lead, Cadmium, and Cadmium Compounds |
| Escargot, Vegan Fish Fillet, and Flax Seeds | 6 Notices | Cadmium, 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 | 1 Notice | Titanium Dioxide (airborne, unbound particles of respirable size) |
| Personal Care: Notices include aloe vera gel, cuticle scissors, foot reflexology set, face mask sheet, and body lotion | 8 Notices | DDi(2-ethylhexyl)phthalate (DEHP), Di-n-butyl phthalate (DBP), Diethanolamine, and lead |
Consumer Products |
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| Product Category | Notice(s) | Alleged Chemicals |
| Leather Products: Notices include baseball gloves, footwear, organizers, and welding aprons | 6 Notices | Chromium (hexavalent compounds) |
| Footwear | 9 Notices | Bisphenol A (BPA) |
| Plastic Pouches, Bags, and Accessories: Notices include storage bags, backpacks, purses, and gift set bags | 10+ Notices | Di(2-ethylhexyl)phthalate (DEHP), and Di-isodecyl phthalate (DIDP) |
| Glassware and Ceramics: Notices include mugs, salt and pepper shakers, mirrors, frames, wind chimes, spoon rests, and piggybanks | 20+ Notices | Lead, Di(2-ethylhexyl)phthalate (DEHP), and Di-n-butyl phthalate (DBP) |
| Fishing Sinkers | 6 Notices | Lead |
| Soldering Wire and Solder | 4 Notices | Lead |
| Tools: Notices include tools with vinyl or PVC grips | 10 Notices | Nickel and Certain Nickel Compounds |
Environmental |
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| Exposure from Petroleum Refining Operations | 1 Notice | Perfluorooctane Sulfonate (PFOS), Perfluorooctanoic Acid (PFOA), and 1,3-Dichloropropene |
Other |
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| Product Category | Notice(s) | Alleged Chemicals |
| Unleaded Gasoline | 100+ 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.
