June 5, 2023
Private citizens represented by attorneys versed in California’s “Proposition 65” law filed 363 “60-Day Notices” in May 2023 alone, accusing businesses of exposing consumers to toxic chemicals without providing required clear and reasonable warnings. Compared to the same month-period in 2022, this is over 100 more 60-Day Notices of alleged Proposition 65 violations, and a 38 percent increase in such notices for 2023 so far. This indicates a trend of increased enforcement by private citizens than in years past.
The 1986 California voter-approved Safe Drinking Water and Toxic Enforcement Act, known colloquially as “Proposition 65,” requires companies with 10 or more employees to warn consumers before knowingly and intentionally exposing them to chemicals known to cause cancer or reproductive harm. The law allows individuals (or “private enforcers”) acting in the public interest to take legal action to enforce Proposition 65 against alleged violators. However, private enforcers must wait at least 60 days after sending a notice of violation to the alleged violators and to public enforcers (i.e., the Office of the Attorney General and District Attorneys around the state).
The majority of the May 2023 notices (57 percent) accuse companies of exposing individuals to lead and lead compounds without providing the necessary warnings. The second most commonly noticed chemical compounds are phthalates, including Di(2-ethylhexyl)phthalate (DEHP) (found in some lunchboxes, school binders, and plastic food packaging materials) and Diisononyl phthalate (DINP) (found in some vinyl flooring, auto interiors, garden hoses, and shoes), among others.
A wide range of products are subject to the Proposition 65 warning requirements. Products that are frequently at issue in 60-Day Notices include:
- Consumer products: Various consumer goods, such as electronics, household cleaners, furniture, cosmetics, jewelry, and personal care products.
- Food and beverages: Certain food items, including packaged foods, beverages, and dietary supplements.
- Building materials: Certain construction materials and equipment, such as paints, adhesives, carpets, and insulation materials.
- Children’s products: Toys, clothing, and other products intended for children.
- Environmental exposure: Proposition 65 also applies to exposures occurring in the environment. This includes warnings related to air pollutants, water contamination, and hazardous waste sites.
If your company receives a 60-Day Notice, it is crucial to act swiftly. Failing to provide the required warnings under Proposition 65 may result in penalties of up to $2,500 per violation per day. Hartman King PC specializes in helping companies navigate all aspects of Proposition 65 and can provide valuable assistance by promptly developing efficient defense and resolution strategies. If you require assistance with compliance or litigation defense, please contact us at [email protected].
By the Numbers – May 2023 60-Day Notices
|
Listed Chemicals Under Proposition 65 |
Number of 60-Day Notices |
| Lead | 161 |
| Di(2-ethylhexyl)phthalate (DEHP) | 59 |
| Lead and lead compounds | 36 |
| Unleaded gasoline (wholly vaporized) | 14 |
| Diisononyl phthalate (DINP) | 12 |
| Perfluorooctanoic Acid (PFOA) | 11 |
| Titanium dioxide (airborne, unbound particles of respirable size) | 10 |
| Di-n-butyl phthalate (DBP) | 9 |
| Diethanolamine | 6 |
| Di(2-ethylhexyl)phthalate, Di(2-ethylhexyl)phthalate (DEHP) | 5 |
| Bisphenol A (BPA) | 5 |
| Cadmium | 4 |
| beta-Myrcene, delta-9-tetrahydrocannabinol, Marijuana smoke | 3 |
| Chromium (hexavalent compounds) | 3 |
| Cadmium and cadmium compounds | 3 |
| Cadmium, Lead | 3 |
| Cadmium and cadmium compounds, Lead and lead compounds | 2 |
| Perfluorooctane Sulfonate (PFOS), Perfluorooctanoic Acid (PFOA) | 2 |
| Mercury | 2 |
| delta-9-tetrahydrocannabinol, Marijuana smoke | 2 |
| Cadmium, Lead and lead compounds | 2 |
| Arsenic (inorganic arsenic compounds), Arsenic (inorganic oxides), Lead and lead compounds | 2 |
| Arsenic (inorganic arsenic compounds), Arsenic (inorganic oxides), Cadmium and cadmium compounds, Lead and lead compounds | 1 |
| Lead and lead compounds, Mercury and mercury compounds | 1 |
| delta-9-tetrahydrocannabinol | 1 |
| Cadmium, Lead and lead compounds, Mercury and mercury compounds | 1 |
| Mercury and mercury compounds | 1 |
| Arsenic (inorganic arsenic compounds), Arsenic (inorganic oxides) | 1 |
| Di(2-ethylhexyl)phthalate (DEHP), Di-n-butyl phthalate (DBP) | 1 |
| Grand Total |
363 |
© 2023 – Hartman King PC. All rights reserved. Hartman King PC prepared the information in this article for informational purposes only, and it does not constitute legal advice.