July 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 July of 2024, product manufacturers, distributors, and retailers were the targets of 489 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 July 2024 are excerpted and discussed below. A complete list of Notices sent in July 2024 can be found on the California Attorney General’s website, located here: 60-Day Notice Search.
Food and Drug |
||
| Product Category | Notice(s) | Alleged Chemicals |
|
Dietary Supplements: Notices include protein powder, mushroom powder, herbal supplements, and fiber capsules |
26 Notices |
Mercury and Mercury Compounds, Lead and Lead Compounds |
| Seafood: Notices include seaweed chips, scallops, herring, anchovies, and sardines | 24 Notices | Cadmium and Cadmium Compounds, and Lead and Lead Compounds |
| Fruits and Vegetables: Notices include olives, chopped spinach, spiced mangos, sweet potato chips, dried apricots, and dried cherries | 17 Notices | Lead and Lead Compounds and Cadmium and Cadmium Compounds |
| Snack Foods: Notices include protein bars, trail mix, and veggie chips |
14 Notices |
Acrylamide |
| Assorted Prepared Food and Snacks: Notices include crackers, chocolate, chips, almonds, and pickles |
11 Notices |
Cadmium and Lead and Lead Compounds |
|
Spices and Sauces: Notices include cocoa powder, ground oregano, whole flax seed, powdered turmeric, and mole poblano |
11 Notices |
Lead and Lead Compounds and Cadmium |
| Noodles, Pasta, and Rice: Notices include spaghetti with turmeric, risotto, and red lentil spaghetti | 4 Notices | Lead and Lead Compounds, Cadmium, and Mercury |
| Dietary Supplements | 4 Notices |
Perfluorooctanoic acid (PFOA) |
| THC Sparkling Beverages | 2 Notices | Delta-9-tetrahydrocannabinol |
Cosmetics and Personal Care |
||
| Product Category | Notice(s) | Alleged Chemicals |
| Personal Care Products: Notices include sunscreen, body wash, shampoo, detangler, shave gel, eyeliner, mascara, blush, lipstick, concealer, foot & heel mask, and moisturizers | 187 Notices | Coconut Oil Diethanolamine Condensate (Cocamide Diethanolamine), and Diethanolamine |
|
Sunscreen |
2 Notices |
Benzophenone |
Consumer Products |
||
| Product Category | Notice(s) | Alleged Chemicals |
| Glassware and Ceramics: Notices include mugs, salt and pepper shakers, picture frames, candles, platters, teapots, windchimes, and ornaments |
51 Notices |
Di(2-ethylhexyl)phthalate (DEHP), Di-n-butyl Phthalate (DBP), and Lead |
| Plastic Pouches, Bags, and Accessories: Notices include handbags, totes, hanging organizers, travel cases, fanny packs, and cases of tools | 39 Notices |
Di(2-ethylhexyl)phthalate (DEHP), Diisononyl phthalate (DINP), and Di-n-butyl Phthalate (DBP) |
| Tools: Notices include cameras, caulking lead, PVC electrical tape, shears, first aid kits, buckets, medical devices, and hammers |
27 Notices |
Di(2-ethylhexyl)phthalate (DEHP), Di-isodecyl Phthalate (DIDP), Diisononyl Phthalate (DINP), Lead and Lead Compounds |
| Clothing, Shoes, and Jewelry: Notices include sandals, pants, belts, and necklaces | 15 Notices | Di(2-ethylhexyl)phthalate (DEHP), Di-n-butyl phthalate (DBP), Lead |
| Housewares: Notices include tablecloths and shower curtains | 12 Notices | Perfluorononanoic Acid (PFNA) and its salts, and Perfluorooctanoic Acid (PFOA) |
| Housewares: Notices include aprons, windchimes, and candlestick holders | 9 Notices | Bisphenol A (BPA), Di(2-ethylhexyl)phthalate (DEHP), Lead |
|
Fishing Tools: Notices include sinkers, lead weights, and bait |
8 Notices |
Lead and Lead Compounds |
| Clothing and Hats: Notices include t-shirts, windbreakers, and sun hats | 8 Notices | Perfluorooctane Sulfonate (PFOS), and Perfluorooctanoic Acid (PFOA) |
| Sports Gear: Notices include dumbbells, throw ropes, gymnastics mats, and kayak foot braces | 5 Notices | Di-n-butyl Phthalate (DBP), Di(2-ethylhexyl)phthalate (DEHP), and Lead |
| Cookware: Notices include stainless steel kitchen scissors, canteens, and paper straws | 3 Notices | Lead and Perfluorooctanoic Acid (PFOA) |
Other Areas of Interest |
||
| Product Category | Notice(s) | Alleged Chemicals |
| Unleaded Gasoline | 10 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.
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.