In July, citizen plaintiff enforcers of California’s Proposition 65 (“Prop. 65”) continued to send hundreds of 60-Day Notices of Violation (“Notices”), as they have during each month of 2020. These Notices challenge the chemical content of different foods and consumer products and demand that a standard warning be placed on products that are allegedly in violation of the regulation, by exposing California consumers to chemicals in quantities that could cause cancer or reproductive harm. Over 300 Notices were sent in July 2020, both making new claims and correcting and supplementing prior claims.

Prop. 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires “clear and reasonable warnings” on consumer products (including foods) sold in California, if use of the products causes an exposure to chemicals on the Prop. 65 List. It gives interested citizen plaintiffs a private right of action to enforce these claims and recover their attorneys’ fees in so doing. Common chemicals that citizen plaintiff groups target typically include lead, acrylamide, cadmium, arsenic and phthalates (Di(2-ethylhexyl) phthalate (“DEHP”), diisononyl phthalate (“DINP”) and Di-n-butyl phthalate (“DBP”)). As we discuss below, Bisphenol A (“BPA”) is also becoming a chemical that is commonly targeted by citizen plaintiff groups.

Trends in Prop. 65 Notices in July 2020 were different than in earlier months of the year. While the high volume of Notices for phthalates in pliable plastics and PVC plastic products continued with over 100 Notices sent in both June and July, other notice trends changed. Food Notices for acrylamide in browned and crispy snack foods declined. The collective number of Notices for seafood products also declined from the over 70 Notices sent for seafood products in June. Food Notices increased that alleged that certain foods contain BPA and therefore required a Prop. 65 warning; likewise a large variety of food and supplement products received Notices alleging that their lead content required a warning. Our monthly overview of product and chemical trends, below, describes commonalities in Prop. 65 Notice activity in July.

60-Day Notices for Food

Prop. 65 Notices for food in July 2020 trended as follows:

• Cadmium & Lead in Dietary Supplements, Spices, Seaweed and Seafood, Cereals and Crackers, and Chocolate. In June, citizen plaintiffs alleged that over 70 different seafood products (clams, cuttlefish, shrimp, snails, fish balls, calamari, squid, eel, oysters, and octopus) contain cadmium and lead, and thus require a warning. Additional Notices were sent for dietary supplements and for other foods. In July, just over 70 total Notices were sent alleging violations of Prop. 65 related to cadmium and lead content for a wide variety of foods, not limited to seafood. Products noticed included dietary supplements, spices, seaweed and seafood, cereals and crackers, and chocolate. Over 10 total Notices were sent for chocolate products in July.
• Acrylamide in Snack Foods, Including Cookies, Crackers, Chips and Nut Products. The number of Notices sent alleging acrylamide content in foods declined in July from the over 40 Notices sent in June for acrylamide. Just over 20 Notices were sent in July alleging that acrylamide content in crackers, cookies, chips and nut products required a warning.
• BPA In Canned Goods and Baby / Toddler Foods. The Number of Notices for BPA increased in July 2020. Thirty-three total Notices were sent alleging that food products, including canned fruits and vegetables and baby and toddler foods, contain BPA and therefore required a Prop. 65 warning.

60-Day Notices for Consumer Products

Notices for consumer products had the following commonalties:

• Phthalates (DEHP, DINP and DBP) in Plastic Bags & Pouches and PVC Plastic Products. Much like the month of June, 118 Notices were sent in July alleging that plastic bags and pouches and other plastic consumer products including PVC products and electrical tape, contain phthalates and required a warning.

• BPA in Phone Cases. Finally, Notices were sent alleging that BPA in consumer products, including phone cases, required a warning.

What Should Food, Consumer Products and Manufacturing Businesses Do Next?

Food, consumer products and manufacturing companies selling products in California are subject to Prop. 65’s warning requirements. It is essential for businesses in these industries to monitor Prop. 65 notices and trends to gauge whether they have products with significant sales volume in California that could be subject to a Prop. 65 Notice.

The State of California hosts a website describing the regulation here. Complying with Prop. 65 includes a risk assessment, testing products for common Prop. 65 chemicals, understanding exposure and consumption, and feeling comfortable with the results of an exposure assessment and whether safe harbor levels are exceeded and a warning label is required.

As to acrylamide in particular, a recent proposed regulation entitled “Exposures to Listed Chemicals in Cooked or Heat Processed Foods” will set acceptable levels of acrylamide in certain foods (almonds, breads, cookies, crackers, potato products/chips, prune juice and waffles), if enacted. To see a copy of the proposed regulation, please click here. Public comment on this new proposed regulation is open until October 6, 2020. Companies that sell golden browned cooked foods in California are well advised to read and be aware of this regulation and the levels it is proposing for acrylamide in certain foods, and to monitor the evolution of this regulation going forward.

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