October 2020

California Proposition 65: 60-Day Notices Are Heading for a Record High in 2020

Since January 1, 2020 more than 2,500 60-day notices have been filed with the California Attorney General’s office for Proposition 65 violations, including more than 280 filed in September alone. This track is setting 2020 up to be the highest on record for 60-day notices filed in a single year. A summary of the compounds that are the subject of these notices are provided in this document.

Who’s at Risk?

Evaluation of the current notices indicates that the food, plastic, ceramics, leather and metal consumer goods industries are at the highest risk of litigation. Dietary supplements were also frequently implicated. Documented penalties and fees have already surpassed $1.5 million, with fines for more than 2,400 notices not yet recorded. With the average settlement of approximately $42,000, and assuming a settlement rate of about 35% (based on the 2018 Proposition 65 annual settlement report), fees and penalties for 2020 may surpass more than $42 million for at-risk industries.

The chemicals most commonly mentioned in notices are:

ChemicalIndustryProducts
Acrylamide
  • Food
Nuts (almonds and cashews), seeds, corn, potato, wheat- and rice-based baked goods and snack foods, baked bean products
Arsenic
  • Food
  • Manufacturing
Notices are primarily associated with foods, particularly seafood (shrimp), seaweed and kelp, herbs and spices and rice products. A few notices were associated with recreational hookah products and air emissions from industrial release.
Bisphenol A
  • Food
  • Consumer Goods
The majority of notices were associated with canned and other packaged food products; others were also associated with plastic consumer goods and thermal papers
Cadmium
  • Food
  • Consumer Goods
  • Dietary Supplements
Primarily associated with food products although a few notices for consumer goods or dietary supplements were identified
Carbaryl (pesticide)
  • Food
Vinegars and oils
Diethanolamine
  • Consumer Goods
Toiletries such as gels, cleansers and make-up
Hexavalent chromium
  • Leather & Metals
Various consumer leather goods and metal products, particularly steel
Lead
  • Food
  • Consumer Goods
  • Dietary Supplements
Foods accounted for a majority of notices, followed by consumer goods, particularly tools and ceramic products, but also dietary supplements, spices, ointments, fishing gear, faucets and lip gloss.
Phthalates
  • Consumer Goods
  • Plastic
A significant variety of consumer goods using both rigid and flexible plastics, but with a strong focus on flexible plastics such as PVC or vinyl

Understanding your product’s listed chemical contaminant risk and exposures, as well as the associated warning obligations, can help avoid litigation penalties and fees. Do you lack the internal expertise or resources to make the proper assessments? Visit our service page for more information.

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