May 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 May of 2024, product manufacturers, distributors, and retailers were the targets of over 541 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 May 2024 are excerpted and discussed below. A complete list of Notices sent in May 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 joint health supplements, red reishi mushroom powder, prebiotic daily greens powder, ginseng, and smoothie powder |
33 Notices |
Lead and Lead Compounds, Mercury and Mercury Compounds, Cadmium and Perfluorooctanoic Acid (PFOA) |
|
Seafood: Notices include seaweed, sardines, scallops, chopped clams, mussels, shellfish, shrimp sauce, and pink salmon |
35 Notices |
Lead and Lead Compounds, Cadmium and Cadmium Compounds, and Mercury |
|
Noodles, Pasta, and Rice: Notices include broccoli rice, spinach and cheese tortellini, miso ramen, spaghetti, and mushroom ravioli |
18 Notices |
Lead, Cadmium, and Mercury |
|
Fruits and Vegetables: Notices include dried tangerines, cut leaf spinach, dried mushrooms, capers, and spring mix |
23 Notices |
Lead and Lead Compounds, and Cadmium |
|
Spices and Sauces: Notices include za’atar, tamarind puree, cinnamon powder, paprika powder, tomato paste, and pepper paste chili |
18 Notices |
Lead and Lead Compounds |
|
Assorted Prepared Food and Snacks: Notices include kale chips, yogurt, energy bar, cauliflower pretzels, cinnamon oatmeal, and veggie chips |
23 Notices |
Lead, and Cadmium and Cadmium Compounds |
Cosmetics and Personal Care |
||
| Product Category | Notice(s) | Alleged Chemicals |
|
Powdered Cosmetics: Notices include eyeshadow, setting powder, pressed powder foundation, pressed highlighter powder, and blush powder |
19 Notices |
Titanium Dioxide (airborne, unbound particles of respirable size) |
|
Personal Care Items and Cosmetics: Notices include mascara, foundation, lip gloss, shampoo, sunscreen, body wash, soap, hair gel, shave gels, and hand sanitizers |
200+ Notices |
Diethanolamine and Coconut Oil Diethanolamine Condensate (cocamide diethanolamine) |
|
Personal Care Items: Notices include velcro hair rollers and dental care kits |
2 Notices |
Di(2-ethylhexyl)phthalate (DEHP) |
Consumer Products |
||
| Product Category | Notice(s) | Alleged Chemicals |
|
Cookware: Notices include roasting forks, pick sets, and a knife cover |
2 Notices |
Di(2-ethylhexyl)phthalate (DEHP), and Diisononyl phthalate (DINP) |
|
Leather Goods: Notices include phone case and money pouch, and belt |
2 Notices |
Chromium (hexavalent compounds), and Di(2-ethylhexyl)phthalate (DEHP) |
|
Clothing and Shoes: Notices include gloves, shoes, and headbands |
7 Notices |
Chromium (hexavalent compounds), Di(2-ethylhexyl)phthalate (DEHP), and Di-n-butyl phthalate (DBP) |
|
Clothing and Shoes: Notices include pants, shirts, and jackets |
6 Notices |
Perfluorooctanoic Acid (PFOA) |
|
Jewlery: Notices include bracelets and earrings |
2 Notices |
Lead and Cadmium |
|
First Aid and Medical Devices: Notices include vinyl components of wheelchairs, blood pressures cuffs, and ice packs |
8 Notices |
Di(2-ethylhexyl)phthalate (DEHP), Lead, and Diethanolamine |
|
Plastic Pouches, Bags, and Accessories: Notices include backpacks, handbags, pet carriers, coin purses, and umbrella bags |
26 Notices |
Di(2-ethylhexyl)phthalate (DEHP), and Diisononyl phthalate (DINP) |
|
Glassware and Ceramics: Notices include mugs, saucer sets, dishes set, plates, glass candle holders, and jewelry organizers |
40 Notices |
Lead, Di-n-butyl phthalate (DBP), and Perfluorooctanoic Acid (PFOA) |
|
Housewares: Notices include ironing board covers, curtain rods, cushions, umbrellas, and curtain liners |
7 Notices |
Perfluorooctanoic Acid (PFOA) |
| Solder and Soldering Wire | 4 Notices | Lead and Lead Compounds |
| Tools: Notices include brass bars, hoses, ropes, dog leashes, pliers, iPhone cases and measuring tapes | 28 Notices |
Di-n-butyl phthalate (DBP), Di(2-ethylhexyl)phthalate (DEHP), Lead, Bisphenol A (BPA), Diisononyl phthalate (DINP) |
| Sports Gear: Notices include dumbbells, lead weights, and density cubes | 7 Notices | Di(2-ethylhexyl)phthalate (DEHP), and Lead and Lead Compounds |
| Plastics Accessories: Notices include diaries and planners, cases of travel shoeshine kits, and badge reels | 10 Notices |
Diisononyl phthalate (DINP), Di(2-ethylhexyl)phthalate (DEHP), and Lead and Lead Compounds |
Unleaded Gasoline |
||
| Product Category | Notice(s) | Alleged Chemicals |
| Unleaded Gasoline | 2 Notices | Unleaded Gasoline (wholly vaporized) |
Artificial Grass |
||
| Product Category | Notice(s) | Alleged Chemicals |
| Artificial Grass | 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.