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.
In November of 2023, product manufacturers, distributors, and retailers were the targets of over 395 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 November 2023 are excerpted and discussed below. A complete list of Notices sent in November 2023 can be found on the California Attorney General’s website, located here: 60-Day Notice Search.
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Food and Drug |
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Product Category |
Notice(s) |
Alleged Chemicals |
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Dietary Supplements: Notices include protein powder, spirulina powder, hibiscus powder, and breastfeeding supplements |
41 Notices |
Mercury and Mercury Compounds, Lead and Lead Compounds, and Cadmium |
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Seafood: Notices include canned sardines, oysters, mussels, clams, wild Alaska pink salmon, and shrimp paste |
7 Notices |
Cadmium and Cadmium Compounds, and Lead and Lead Compounds |
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Noodles, Pasta, and Rice: Notices include chickpea rice, tri-color rotini, spaghetti, and mac & cheese shells |
5 Notices |
Lead and Cadmium |
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Fruits and Vegetables: Notices include marinated mushrooms, dried mangoes, grape leaves in brine, dried white mulberries, and steamed spinach |
16 Notices |
Lead and Lead Compounds, Mercury, and Cadmium and Cadmium Compounds |
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Chutneys, Moles, Pastes, and Sauces |
7 Notices |
Lead and Lead Compounds |
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Assorted Prepared Food and Snacks: Notices include crackers, chocolate, rice cakes, seitan vegan chunks, and golden milk |
14 Notices |
Cadmium and Lead and Lead Compounds |
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Cosmetics and Personal Care |
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Product Category |
Notice(s) |
Alleged Chemicals |
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Powdered Cosmetics: Notices include eyeshadow palettes |
7 Notices |
Titanium Dioxide (airborne, unbound particles of respirable size) |
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Lip Oil Sets |
1 Notice |
Di(2-ethylhexyl)Phthalate (DEHP) |
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Hand Soap, Facial Primer, and Facial Cleanser |
3 Notices |
Diethanolamine |
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Tweezers and Eyelash Curlers |
2 Notices |
Di-n-butyl Phthalate (DBP) and Lead |
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Consumer Products |
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Product Category |
Notice(s) |
Alleged Chemicals |
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Various Consumer Products: Notices include plastic purses, flip flops, storage bags, children’s toys, tools, and exercise equipment |
60 Notices |
Diisononyl Phthalate (DINP), Di(2-ethylhexyl)Phthalate (DEHP), and Di-n-butyl Phthalate (DBP) |
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Leather Wallets |
1 Notice |
Chromium (Hexavalent Compounds) |
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Glassware and Ceramics: Notices include mugs, candle sets with exterior designs, metal and glass organizers, ceramic trays, plates, and glass bottles |
23 Notices |
Lead and Lead Compounds |
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Fishing Sinkers and Fishing Weights |
6 Notices |
Lead |
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Tools: Notices include brass D-rings soldering wire and solder |
10 Notices |
Lead |
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Environmental |
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Notices include discharges into drinking water and bystander exposure from use of soil fumigants |
3 Notices |
Perfluorooctane Sulfonate (PFOS), Perfluorooctanoic Acid (PFOA), and 1,3-Dichloropropene |
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Other |
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Product Category |
Notice(s) |
Alleged Chemicals |
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Unleaded Gasoline |
189 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.
