June 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 June of 2024, product manufacturers, distributors, and retailers were the targets of 520 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 June 2024 are excerpted and discussed below. A complete list of Notices sent in June 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 |
|
Seafood: Notices include dried squid, sardines, seaweed, shellfish, and fish paste |
26 Notices |
Lead and Lead Compounds, Cadmium and Cadmium Compounds, and Mercury |
|
Dietary Supplements: Notices include protein powder, pre-workout, collagen, and grape seed powder |
21 Notices |
Lead and Lead Compounds, Mercury and Mercury Compounds, Cadmium and Perfluorooctanoic Acid (PFOA) |
| Fruits and Vegetables: Notices include chopped spinach, crunchy kale, mango, and dried mandarin | 16 Notices | Lead and Lead Compounds, and Cadmium and Cadmium Compounds |
|
Assorted Prepared Food and Snacks: Notices include rice cakes, oatmeal, and chips |
9 Notices |
Lead and Lead Compounds |
|
Spices and Sauces: Notices include tofu sauce, curry sauce, paprika, and cinnamon powder |
7 Notices |
Lead and Lead Compounds |
|
Noodles, Pasta, and Rice: Notices include wheat noodles, ramen noodles, and lasagna |
5 Notices |
Cadmium, Lead and Lead Compounds, and Mercury |
Cosmetics and Personal Care |
||
| Product Category | Notice(s) | Alleged Chemicals |
| Variety of Cosmetics: Notices include concealers, brow gels, mascara, eyeliners, and foundation | 186 Notices | Diethanolamine |
|
First Aid: Notices include pain relief gel, hemorrhoidex gel, muscle rub cream, and wound gel |
5 Notices |
Diethanolamine |
| Personal Care Items: Notices include shampoo and conditioner, and facial cleansers |
7 Notices |
Coconut Oil Diethanolamine Condensate (Cocamide Diethanolamine) |
| Powdered Cosmetics: Notices include eyeshadow palettes, blush, and loose powder |
6 Notices |
Titanium Dioxide (airborne, unbound particles of respirable size) |
Consumer Products |
||
| Product Category | Notice(s) | Alleged Chemicals |
| Plastic Pouches, Bags, and Accessories: Notices include makeup kit pouches, phone pouches, toiletry bags, and duffel bags |
122 Notices |
Lead, Di(2-ethylhexyl)phthalate (DEHP), Di(2-ethylhexyl)phthalate, and Diisononyl Phthalate (DINP) |
| Tools: Notices include sledgehammers, hanger bolts, ball valves, and brass tank fittings | 41 Notices | Lead and Lead Compounds, and Di(2-ethylhexyl)phthalate, Di(2-ethylhexyl)phthalate (DEHP) |
| Glassware and Ceramics: Notices include mugs, teapots, teacups, trays, and bowls |
30 Notices |
Lead |
| Clothing, Shoes, and Jewelry: Notices include heels, gloves, hats, and necklaces | 14 Notices | Lead, Di-n-butyl Phthalate (DBP), Chromium (Hexavalent Compounds) |
| Sports Gear: Notices include jump ropes, fishing hooks, and lead tape for pickleball paddles | 9 Notices | Lead and Lead Compounds, and Di(2-ethylhexyl)phthalate, Di(2-ethylhexyl)phthalate (DEHP) |
|
Housewares: Notices include ironing pads, seat pads, canvas drop cloths, lanterns, and beauty cases |
7 Notices |
Perfluorooctanoic Acid (PFOA) and Bisphenol A (BPA) |
|
Solder, Lead Wire, and Lead Solder Pellets |
4 Notices |
Lead and Lead Compounds |
Environmental |
||
| Product Category | Notice(s) | Alleged Chemicals |
| Discharge into a source of drinking water | 1 Notice | Arsenic (inorganic arsenic compounds), Beryllium, Cadmium, Chromium (Hexavalent Compounds), Lead |
| Treated Wood Products: Notices include utility poles and crossarms, and treated wood waste | 1 Notice | Perfluorooctane Sulfonate (PFOS) |
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.