October 2023 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 2023, product manufacturers, distributors, and retailers were the targets of 404 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 2023 are excerpted and discussed below. A complete list of Notices sent in October 2023 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 | |
| Dietary Supplements: Notices include protein powder and ashwagandha powder, collagen powder, psyllium husk powder, chlorella, breastfeeding supplement, plant protein powders, moringa and beet root powder, hibiscus powder, and flax seed | 40 Notices |
Mercury, Lead and Lead Compounds, and Cadmium |
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| Seafood: Notices include canned sardines, dried shrimp and herring, kelp knots, seaweed, shellfish, and octopus | 16 Notices | Arsenic, Cadmium and Cadmium Compounds, Lead and Lead Compounds, and Mercury | |
| Noodles, Pasta, and Rice: Notices include risotto, noodle soup, jasmine rice, fusilli pasta, and spinach fettuccine | 7 Notices | Lead, Cadmium, and Mercury | |
| Fruits and Vegetables: Notices include dried mushrooms, dried apricots, mango, jarred pickles, sun-dried tomatoes, capers, fresh spinach and kale, bamboo shoots, and ground oregano | 40 Notices | Lead and Lead Compounds, Mercury, Cadmium and Cadmium Compounds, Arsenic (inorganic arsenic) | |
| Chutneys, Moles, Pastes, and Sauces | 11 Notices | Lead and Lead Compounds | |
| Assorted Prepared Food and Snacks: Notices include crackers, beet latte, oatmeal bars, stuffed olives, and vegan jerky | 24 Notices | Cadmium, Lead and Lead Compounds, and Mercury | |
| Escargot and Cassava Flour | 2 Notices | Cadmium and Cadmium Compounds, and Lead | |
Cosmetics and Personal Care |
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| Product Category | Notice(s) | Alleged Chemicals | |
| Powdered Cosmetics: Notices include blush powder and eyeshadow palettes | 4 Notices | Titanium Dioxide (airborne, unbound particles of respirable size) | |
| Personal Care Items: Notices include manicure sets, facial sprays, glitter gel, brow kits, face masks, styling gel, and shave gel | 11 Notices |
Di(2-ethylhexyl)Phthalate (DEHP), Diethanolamine, Coconut Oil Diethanolamine Condensate (cocamide diethanolamine), and Lead |
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Consumer Products |
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| Product Category | Notice(s) | Alleged Chemicals | |
| Cookware: Notices include blender and nonstick frypans | 2 Notices | Bisphenol A (BPA) and Perfluorooctanoic Acid (PFOA) | |
| Leather Footwear and Accessories: Notices include gloves, belts, boots, and wallets | 3 Notices |
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| Golf Hats and Children’s Bibs | 5 Notices |
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| Clothing and Shoes: Notices include sandals, belts, work gloves, and aprons | 6 Notices |
Di(2-ethylhexyl)Phthalate (DEHP), Diisononyl Phthalate (DINP), and Di-n-butyl Phthalate (DBP) |
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| Plastic Pouches, Bags, and Accessories: Notices include backpacks, bags, purses, cases, travel pouches, lunch bags, and baskets | 30+ Notices |
Di(2-ethylhexyl)Phthalate (DEHP), Diisononyl Phthalate (DINP), and Di-n-butyl Phthalate (DBP) |
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Glassware and Ceramics with Exterior Designs |
30+ Notices |
Lead and Di(2-ethylhexyl)Phthalate (DEHP) |
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Fishing Sinkers |
7 Notices | Lead | |
| Soldering Wire and Solder | 8 Notices |
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Sports Gear: Notices include jump rope, dumbbells, free weights, nets, and cupping sets |
10 Notices |
Di(2-ethylhexyl)Phthalate (DEHP) and Lead |
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Vinyl Products: Notices include curtains and liners, grips, tarps, electrical tape, hoses, tubing, pet beds, and luggage tags |
19 Notices |
Di(2-ethylhexyl)Phthalate (DEHP), Diisononyl Phthalate (DINP), and Lead |
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Environmental |
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Discharges into Sources of Drinking Water |
1 Notice |
Perfluorooctane Sulfonate (PFOS) |
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Other |
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| Product Category | Notice(s) | Alleged Chemicals | |
| Unleaded Gasoline | 85+ 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.