By: Anne Marie Ellis
It has been almost three months since the latest amendments to California’s Proposition 65 took effect on Aug. 30, 2018. Prop 65 was enacted in California in 1986 as the “Safe Drinking Water and Toxic Enforcement Act.” Despite this official title, Prop 65 regulates far more than just water pollution. The purported goal of Prop 65 is to protect Californians from exposure to substances known to the State of California to cause cancer or reproductive harm.
California’s Office of Environmental Health Hazard Assessment, or OEHHA, is tasked with publishing, and updating at least annually, the list of chemicals known to cause cancer or reproductive toxicity. To date, there are over 900 chemicals on OEHHA’s list. Based on recent notices filed by OEHHA, there is a trend toward listing of food products and consumer household goods, as well as certain locations, like designated smoking areas that lack the appropriate signage.
Even before the Aug. 30 amendments, Prop 65 required specific warnings. The amendments changed the nature and content of the warnings for many products and substances, including alcoholic beverages, diesel engine exhaust, foods, furniture products, passenger and off-highway vehicles, petroleum products, recreational vessels and wood dust. OEHHA has also designated certain places open to the public that have required Prop 65 warnings and updates thereto.
Warnings related to locations include environmental exposure warnings (indoor/outdoor exposures that do not arise from the use of consumer products), occupational warnings (which must comply with the OSHA Federal Hazard Communication Standard), alcoholic beverage warnings, warnings covering food and non-alcoholic beverage exposures in restaurants, warnings for enclosed parking facilities, petroleum product exposure warnings, warnings related to service stations and vehicle repairs, warnings for designated smoking areas and hotel exposure warnings.
New Safe Harbor Warnings
- The amendments include new and very specific “safe harbor” warnings, requiring the following:
- Warnings must state that a product or location can expose a person to a Prop 65 chemical (as opposed to old warnings that state that the product or location may simply contain such a chemical).
- Warnings must specify at least one chemical for which the warning is provided, and if the warning is for both cancer and reproductive harm, a chemical must be specified for each.
- In the event a sign, label or shelf tag for a product is provided in a language other than English, the Prop 65 warning must also be provided in that language.
- Warnings must be in type no smaller than the largest type used for other consumer information, with a minimum 6 point font.
- The word “WARNING” must appear in bold caps.
- There must be an image of an exclamation point in a yellow triangle to the left of the warning, in a size no smaller than the height of the word “WARNING.” However, if yellow is not a color elsewhere on the product or packaging, black and white is acceptable.
- The new regulations also add new tailored warnings that provide more specific information for certain kinds of exposures and places, provide specific requirements for products purchased over the internet or in catalogs, and clarify where the responsibility to warn falls within the supply chain.
Recent OEHHA Activity
With regard to automotive products specifically, notices were recently filed against Pep Boys for selling vehicle lights with suction cups that contain DEHP, against Ross Stores for selling a steering wheel cover that contains DEHP and against AutoZone Inc. for selling a car duster containing DEHP.
The food and supplement industry is particularly vulnerable under Prop 65 right now. Recent notices filed by OEHHA cover substances including arsenic in dietary supplements; cadmium, lead and lead compounds in dietary supplements and breastfeeding supplements; acrylamide in french fried and sweet potatoes, nuggets and crackers; lead and arsenic in cinnamon, cumin, curry powder, psyllium husk powder, chocolate and energy shakes; and cadmium in chocolate. OEHHA has also added soluble nickel compounds to the list of chemicals known to cause reproductive toxicity.
Other recent notices have been filed related to designated smoking areas. The newly required warning for such areas reads as follows: “Designated smoking areas can expose you to chemicals on the Proposition 65 list.” This is one example of “low-hanging fruit” for Prop 65 litigation — because the only thing plaintiffs have to do is look for a sign. If the required sign is not there, or the warning is incorrect, a business will undoubtedly receive a notice of violation. However, this sign is only required if a business has a designated smoking area.
The new regulations also require warnings about chemical exposures at residential rental property. OEHHA is proposing modifications to this section, with a comment period that ended on Nov. 7. The modifications attempt to provide greater clarity as follows: 1) to specify that warnings may be provided by a combination of hard copy and electronic method, so long as each known adult occupant receives a warning at the time of renting, leasing, letting or hiring out the property, and an annual warning thereafter; 2) to permit that warnings be provided to “tenants and occupants” if the names of the adult occupants are unknown; 3) to permit delivery of warnings to each email address associated with each adult; 4) to clarify that warnings can be provided in the lease or rental agreement; and 5) to clarify methods for providing annual warnings in a renewed lease.
OEHHA recently provided notice that it proposes to amend the regulations related to food products. It proposes to clarify that where a business presents evidence for the level in question of a chemical listed as causing reproductive toxicity based on the average of multiple samples of that food, the level in question may not be calculated by averaging the concentration of the chemical in food products from different manufacturers or producers, or food products that were manufactured in different facilities from the product at issue. Instead, OEHHA proposes that to determine whether a product requires a warning, the “reasonably anticipated rate of intake or exposure” from consumer products should be calculated using the arithmetic mean of the rate of intake or exposure for product users.
Plaintiffs Bar Activity
The plaintiffs bar is out with a vengeance, targeting all types of consumer products, with a sharp focus on products containing phthalates — in particular, DINP, DEHP and DBP. Targeted products include pouches, bags, goggles, earmuffs, earbuds/cords, hangers, eyelash curlers, stress neck pillows, charging cords, badge holders and backpacks. There is also a continued focus on lead in items such as brass towel rings, towel racks and holders.
Prop 65 is a big business for bounty hunters. In 2017, out of court settlements totaled $25,767,500 and attorney’s fees totaled $19,486,382. This large amount of money is kept by a small group of lawyers and alleged “environmental groups.” Based on recent notices, the most prolific filer is Anthony Ferreiro, represented by Brodsky & Smith. The runner-up is Consumer Advocacy Group Inc., represented by Yeroushalmi & Yeroushalmi.
Industries that have not yet been targeted can assume they will be targeted soon. I anticipate that the first products that plaintiffs will target are those without warning labels. After that, I believe plaintiffs will target websites and catalogs without warnings, or with improper warnings. Finally, I predict that plaintiffs will start to target products with incorrect or inaccurate labels, in an effort to demonstrate that the chemicals or endpoints are incorrectly stated.