August 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 August of 2024, product manufacturers, distributors, and retailers were the targets of 455 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 August 2024 are excerpted and discussed below. A complete list of Notices sent in August 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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Seafood and Seaweed: Notices include sardines, dried squid, red shrimp, anchovy paste, smoked mussels, wild Alaska pink salmon, dried mackerel, and shrimp egg rolls |
30+ Notices |
Lead and Lead Compounds, Cadmium and Cadmium Compounds |
| Assorted Prepared Food and Snacks: Notices include rice cakes, spinach spaghetti, protein chips, wafer crackers, raisin biscuits, bagels, pickle relish, and vegetable soup | 30+ Notices | Lead and Lead Compounds, Cadmium, and Cadmium Compounds |
| Dietary Supplements: Notices include superfood smoothie kits, hydrolyzed collagen powder, meal replacement shakes, valerian root complexes, and superfood powders | 22 Notices | Cadmium, Lead and Lead Compounds, Mercury and Mercury Compounds |
| Fruits and Vegetables: Notices include frozen chopped spinach, canned grape leaves, dried bracken fern, dried thistle, capers, and freeze-dried strawberries |
20+ Notices |
Lead and Lead Compounds, Cadmium and Cadmium Compounds, Mercury |
| Herbs and Spices: Notices include ground oregano, ground cinnamon, thyme leaves, beet root powder, ginger powder, BBQ rubs, maca root, matcha powder, and dried aniseed |
20+ Notices |
Lead and Lead Compounds |
|
Assorted Prepared Snacks: Notices include vegetable root chips, premium cashew nut mix, corn sticks, sesame sticks, plantain chips, cheddar popcorn, cauliflower hashbrowns, whole grain bread, and potato chips |
15 Notices |
Acrylamide |
Cosmetics and Personal Care |
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| Product Category | Notice(s) | Alleged Chemicals |
| Personal Care Items: Notices include hair color, aloe vera lotions, dandruff shampoo, daily brightening solution, shave gels, and facial cleansing wipes | 60+ Notices | Diethanolamine |
| Other Cosmetics: Notices include lip oil, eyeliner, lipstick, brow gels, and mascara | 16 Notices | Diethanolamine |
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Powdered Cosmetics: Notices include eyeshadows and setting powder |
3 Notices |
Titanium Dioxide (airborne, unbound particles of respirable size) |
Consumer Products |
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| Product Category | Notice(s) | Alleged Chemicals |
| Glassware, Metals, and Ceramics: Notices include mugs, teapots, pitchers, cooking accessories, ceramic jars, egg cups, and measuring cups |
50+ Notices |
Lead and Lead Compounds |
| Plastic Pouches, Bags, and Accessories: Notices include purses, cosmetic bags, golf bags, bike bags with PVC, eyeglass cases, lunch bags, and storage bags for easels | 35 Notices |
Di(2-ethylhexyl)phthalate (DEHP), Diisononyl Phthalate (DINP), and Lead |
| Hardware and Home Improvement Products: Notices include brass knobs, ball valves, vinyl tape, lead pip, solder pellets, ratchet straps, and snap pliers |
25+ Notices |
Lead and Di(2-ethylhexyl)phthalate (DEHP); and Diisononyl Phthalate (DINP) |
| Other Consumer Products: Notices include knee pads, paper towel holders, desk fans, tongs, compass, orthodontic kits, USB cords, and drapery rods | 25 Notices | Di(2-ethylhexyl)phthalate (DEHP), Diisononyl Phthalate (DINP), Di-n-butyl Phthalate (DBP), and Lead |
| Hobby Items: Notices include paste paints, pickleball paddle lead tape, guitar string cases, jump ropes, and dumbbells | 14 Notices | Di(2-ethylhexyl)phthalate (DEHP); Diisononyl Phthalate (DINP); and Lead and Lead Compounds |
| Clothing and Shoes: Notices include footwear and gloves made with leather, flip flops, platform shoes, chain belts, and jelly sandals | 13 Notices | Di(2-ethylhexyl)phthalate (DEHP), Chromium (hexavalent compounds), Lead; Di-n-butyl phthalate (DBP) |
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Weather-proof Clothing: Notices include swim and athletic shirts, grilling gloves, waterproof backpacks, and umbrellas |
6 Notices |
Perfluorooctanoic Acid (PFOA) |
| Sand-free Mats, Canvas Tarps, and Pillows | 3 Notices | Perfluorooctanoic Acid (PFOA) |
Other Areas of Interest |
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| Product Category | Notice(s) | Alleged Chemicals |
| Environmental Exposures | 1 Notice | 1,3-Butadiene, Chromium (hexavalent compounds), Formaldehyde (gas), Lead and Lead Compounds, Nickel, Nickel Compounds |
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.