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 February of 2024, product manufacturers, distributors, and retailers were the targets of over 352 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 February 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 February 2024 are excerpted and discussed below. A complete list of Notices sent in February 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, maca root powder, wheatgrass, rose powder, fiber supplements, alfalfa complex, and keto coffee blends | 35+ Notices | Cadmium, Lead and Lead Compounds |
| Seafood: Notices include cuttlefish ball, mussels, oysters, anchovies in soy sauce, sardines in tomato sauce, and prawn soup | 10+ Notices | Lead and Lead Compounds, Cadmium and Cadmium Compounds |
| Fruits and Vegetables: Notices include pickled vegetables, roasted eggplant, dehydrated carrots, purple sweet potato powder, beet crisps, dried lemon, grape leaves, flaxseed, mushroom powder, and dried mulberry | 25+ Notices | Lead and Lead Compounds, Cadmium and Cadmium Compounds |
| Spices and Sauces: Notices include mole, coriander chutney, cinnamon, curry paste, chili spices, and fermented green mustard | 6 Notices | Lead and Lead Compounds, and Cadmium |
| Assorted Prepared Food and Snacks: Notices include pea protein chips, plant-based deli, hot cocoa gift sets, gingerbread, flaxseed crackers, pumpkin porridge, nut butter, fruit rolls, and instant spicy soup | 14 Notices | Lead and Lead Compounds, Cadmium, and Cadmium Compounds |
| Noodles and Rice: Notices include brown rice ovaletts, vermicelli noodles, sweet potato noodles, and instant rice noodles | 4 Notices | Mercury and Lead |
Cosmetics and Personal Care |
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| Product Category | Notice(s) | Alleged Chemicals |
| Powdered Cosmetics: Notices include compact finishing powder, bronzing powder, eyeshadow palettes, root coverup, blush, setting powder, and eyebrow powder | 30+ Notices | Titanium Dioxide (airborne, unbound particles of respirable size) |
| Personal Care: Notices include aloe vera gel, stretch mark prevention cream, facial scrubs, cooling gels, face masks, body cream, collagen moisturizer, and mascara | 21 Notices | Diethanolamine |
Consumer Products |
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| Product Category | Notice(s) | Alleged Chemicals |
| Water Resistant Apparel and Various Consumer Products: Notices include jackets and umbrellas, PTFE thread seal tape, outdoor chair covers, and napkins | 14 Notices | Perfluorooctanoic Acid (PFOA) |
| Plastic Pouches, Bags, and Accessories: Notices include shopper totes, travel sets, makeup bags, change purses, glasses cases, cross body bags, woven bags, and clear zipper bags | 30+ 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), Diisononyl phthalate (DINP), and Di-n-butyl phthalate (DBP) |
| Glassware and Ceramics: Notices include include mugs, salt & pepper shakers, candleholders, dip bowls, dog bowls, figurines, ornaments, and cookie jars | 45+ Notices | Lead |
| Hardware and Home Improvement Products: Notices include puller knobs, deadbolts, plumbing rings, hose kits, couplers, hammers, and plugs | 25+ Notices | Lead, Cadmiumm, Di(2-ethylhexyl)phthalate (DEHP), Di-n-butyl phthalate (DBP), and Diisononyl phthalate (DINP) |
Other |
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| Product Category | Notice(s) | Alleged Chemicals |
| Unleaded Gasoline | 19 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.
