October 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 October of 2024, product manufacturers, distributors, and retailers were the targets of 498 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 October 2024 are excerpted and discussed below. A complete list of Notices sent in October 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 |
| Alcoholic Beverages | 72 Notices | Alcoholic beverages, when associated with alcohol abuse |
| Dietary Supplements: Notices include high protein performance bars, bacopa powder, organic protein and greens, super greens, golden milk tea, plant-based proteins, probiotic soda, and pre-workout drinks | 47 Notices | Cadmium, Lead and Lead Compounds, Mercury and Mercury Compounds, and Perfluorooctanoic Acid (PFOA) |
| Seafood: Notices include spiced mackerel, sardines in sauces, jeprox fish, fish cake, seaweed salad, dried rabbitfish, seaweed chips, squid, and seafood-flavored noodles | 35 Notices | Lead and Lead Compounds, Cadmium and Cadmium Compounds |
| Prepared Foods: Notices include gluten-free ginger cookies, mushroom risotto, rosemary crackers, cinnamon churro chips, latte verde, habanero and Himalayan salt, plant-based cheese, vegan jerky, whole grain rotini, tikka masala sauce, tofu sauce, and vegan cheezy mac | 30 Notices | Lead and Lead Compounds, Cadmium, and Mercury |
| Fruits, Vegetables, and Mushrooms: Notices include spinach, roasted sunflower seeds, dried apricots, pickled carrots, stuffed grape leaves, capers, freeze-dried strawberries, dried mango, and rice paper | 24 Notices | Lead and Lead Compounds, Cadmium and Cadmium Compounds, and Mercury |
| Cannabis-Containing Gummies | 9 Notices | Delta-9-tetrahydrocannabinol |
| Herbs and Spices: Notices include cassava flour, chili mix, cinnamon powder, turmeric root powder, cinnamon in honey, and crystallized ginger | 9 Notices | Lead and Lead Compounds |
| Canned Coconut Water | 1 Notice | Bisphenol A (BPA) |
Cosmetics and Personal Care | ||
| Product Category | Notice(s) | Alleged Chemicals |
| Personal Care Items: Notices include hair color, aloe vera lotions, dandruff shampoo, daily brightening solution, shave gels, facial cleansing wipes, face masks, foot creams, gel hand sanitizer, anti-aging serums, and styling gels | 48 Notices | Diethanolamine |
| Cosmetics: Notices include mascara, airbrush makeup, and cream makeup | 8 Notices | Diethanolamine |
Consumer Products | ||
| Product Category | Notice(s) | Alleged Chemicals |
| Hardware and Home Improvement Products: Notices include banana plugs, garbage disposal flange, transfer pups, vinyl tape, brass wall décor, ratchet straps, solder wire, lead pellets, lead sinkers, wood screw anchors, and siphon hose pumps | 55 Notices | Lead and Lead Compounds, Di(2-ethylhexyl)phthalate (DEHP), and Di-n-butyl phthalate (DBP) |
| Other Consumer Products: Notices include steering wheel covers, keychains, ID badges, inflatable seat cushions, canes, mattress pads, shoe horns, and ankle braces | 46 Notices | Di(2-ethylhexyl)phthalate (DEHP), Diisononyl Phthalate (DINP), Cadmium, and Lead |
| Plastic Pouches, Bags, and Accessories: Notices include Halloween activity case, beauty bag, wallets, zipper binders, card holders, guard bags, cases for sheets, clear backpacks, waist packs, insulated cooler bags, and cutlery bags | 41 Notices | Di(2-ethylhexyl)phthalate (DEHP), Diisononyl Phthalate (DINP), and Di-n-butyl Phthalate (DBP) |
| Glassware, Metals, and Ceramics: Notices include mugs, teapots, terrariums, jewelry boxes, candle holders, serving trays, and shot glasses | 27 Notices | Lead and Lead Compounds |
| Miscellaneous Consumer Products: Notices include pillows, hammocks, body tapes, shower liners, tablecloths, umbrellas, placemats, grill covers, mattress protectors, and swim bags | 20 Notices | Perfluorooctanoic Acid (PFOA) |
| Clothing and Shoes: Notices include footwear and gloves made with leather, flip flops, athletic shorts, aprons, belts with grommets, and slider shoes | 17 Notices | Di(2-ethylhexyl)phthalate (DEHP), Chromium (hexavalent compounds), Lead, Di-n-butyl Phthalate (DBP), and Bisphenol A (BPA) |
| Pets and Hobby Items: Notices include dog collars, pet life jackets, badminton rackets, bird feeders, fishing egg sinkers, kettleballs, and sewing kits | 13 Notices | Di(2-ethylhexyl)phthalate (DEHP), Chromium (hexavalent compounds), and Lead and Lead Compounds |
Other Areas of Interest | ||
| Product Category | Notice(s) | Alleged Chemicals |
| Environmental | 1 Notice | Benzene |
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.