April 2024 Bounty Hunter Plaintiff Claims
Exploring Trends in California’s Proposition 65: Claims, Chemicals, Products, and More
California’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 April of 2024, product manufacturers, distributors, and retailers were the targets of over 351 new Notices of Violation (“Notices”) and amended Notices, alleging a violation of Prop. 65 for failure to provide a warning for their products. Notices were based on the alleged presence of the following chemicals in these products. Noteworthy trends and categories from Notices sent in April 2024 are excerpted and discussed below. A complete list of Notices sent in April 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 |
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Dietary Supplements: Notices include protein powder, ashwagandha powder, collagen powder, chlorella, plant protein powders, moringa powder, Irish sea moss, barley grass powder, and garcinia extract |
39 Notices |
Mercury and Mercury Compounds, Lead and Lead Compounds, and Cadmium, Perfluorooctanoic Acid (PFOA) |
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Seafood: Notices include sardines and sardine paste, dried herring, anchovies, mackerel, shellfish, octopus, and seaweed |
28 Notices |
Cadmium and Cadmium Compounds, Lead and Lead Compounds |
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Noodles, Pasta, and Rice: Notices include edamame spaghetti, charcoal noodles, udon noodles, and brown rice vermicelli |
6 Notices |
Lead |
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Fruits and Vegetables: Notices include dried mushrooms, dried apricots, dried ginger, dried mango, papaya spears, and spinach |
17 Notices |
Lead and Lead Compounds, Cadmium and Cadmium Compounds |
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Spices and Sauces: Notices include turmeric powder, tapenade, and za’atar |
4 Notices |
Lead and Lead Compounds |
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Assorted Prepared Food and Snacks: Notices include granola, chips, jerky, vegan quiche, tortillas, and sunflower seeds |
32 Notices |
Lead and Lead Compounds, Cadmium, and Cadmium Compounds |
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Nicotine Pouches |
2 Notices |
Nicotine |
Cosmetics and Personal Care |
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| Product Category | Notice(s) | Alleged Chemicals |
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Powdered Cosmetics: Notices include blush powder, and eyeshadow palettes |
7 Notices |
Titanium Dioxide (airborne, unbound particles of respirable size) |
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Other Personal Care Items: Notices include rolling massagers and lip balm and hand lotion set with reusable case |
3 Notices |
Di(2-ethylhexyl)phthalate (DEHP) |
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Other Cosmetics: Notices include mascara, shampoo, lotions and moisturizers, hair gel, lip balm, and shave cream |
44 Notices |
Coconut oil diethanolamine condensate (cocamide diethanolamine) and |
Consumer Products |
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| Product Category | Notice(s) | Alleged Chemicals |
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Cookware: Notices include kitchen scissors, measuring spoons, and cheese knives |
7 Notices |
Lead and Di(2-ethylhexyl)phthalate (DEHP) |
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Leather Goods: Notices include gloves, shoes, and wallets |
3 Notices |
Chromium (hexavalent compounds) |
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Clothing and Shoes: Notices include sandals, hoodies, coats, and lockets |
12 Notices |
Di(2-ethylhexyl)phthalate (DEHP), |
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Plastic Pouches, Bags, and Accessories: Notices include backpacks, bags, purses, cases, travel pouches, and lunch bags |
26 Notices |
Di(2-ethylhexyl)phthalate (DEHP), Diisononyl phthalate (DINP), and |
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Glassware and Ceramics: Notices include mugs, teapots, glassware trays, and dog bowls |
49 Notices |
Lead, Di(2-ethylhexyl)phthalate, and Di(2-ethylhexyl)phthalate (DEHP) |
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Other Housewares: Notices include candlesticks, umbrellas, stadium cushions, and bedding |
12 Notices |
Di(2-ethylhexyl)phthalate (DEHP), Lead, and |
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Solder and Soldering Wire |
4 Notices |
Lead |
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Tools: Notices include scissors, bandages, brass hardware, electrical tape, and utility gloves |
16 Notices |
Di(2-ethylhexyl)phthalate (DEHP), Di-n-butyl phthalate (DBP), Perfluorooctanoic Acid (PFOA), and Lead and Lead Compounds |
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Sports Gear: Notices include jump rope, dumbbells, fishing sinkers, and hunting vests |
26 Notices |
Lead and Lead Compounds and Di(2-ethylhexyl)phthalate (DEHP) |
Environmental |
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| Product Category | Notice(s) |
Alleged Chemicals |
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Water From Water Fountains |
1 Notice |
Perfluorooctane Sulfonate (PFOS) and Perfluorooctanoic Acid (PFOA) |
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.
To contact us with questions or for more information about California's Proposition 65, email prop65@khlaw.com or call our Washington, DC office at 202.434.4100 or our San Francisco office at 415.948.2800.