The Prop 65 Pandemic: No Covid Slow-Down for Enforcement

While the Covid-19 pandemic caused all sorts of disruptions to society and the economy, at least one area of business has thrived over the last two years: private plaintiff enforcement of California Proposition 65. In 2020-2021, over 40% more Prop 65 actions were brought by private plaintiff "bounty hunters" than in the two years prior to the pandemic (2018-2019). Compared to a decade ago, private plaintiff groups now initiate three times more Prop 65 actions each year, and five times more than in 2008.

Unsurprisingly, the most frequently cited chemicals continue to be phthalates (BBP, DBP, DEHP, DIDP, DINP, and DnHP) and lead, which together account for over 70% of cases. Almost half of all cases involve at least one of the six phthalates (1,557 in 2020, 1,374 in 2021), followed slightly by lead (1,134 in 2020, 1,094 in 2021). Acrylamide is the next most commonly noticed Prop 65 chemical (453 in 2020, 264 in 2021) due to its prevalence in a number of different types of food products (it may be formed during heat processing of foods containing sugars), though litigation over the validity of requiring Prop 65 warnings for acrylamide in foods apparently has curtailed the number of such actions, at least for the time being. The decrease in acrylamide cases also likely accounts for some of the difference in total cases between 2020 and 2021. Cadmium (239 in 2020, 224 in 2021), bisphenol A (83/94), and arsenic (88/75) are the other most common chemicals in Prop 65 actions.

* Total number of 60-Day Notices reported on California Attorney General website database (may include amended notices; some notices include multiple businesses not reflected in total).

** Lower total from 2020 likely due to reduced number of acrylamide cases initiated due to court injunction against new acrylamide suits in March 2021 (injunction lifted in May 2021) and ongoing litigation over Prop 65 warnings for acrylamide in food.

*** 2017 totals inflated by ~700 anomalous cases filed in approximately two weeks related to cannabis products.

Data from the fourth quarter of 2021 -- courtesy of the chart below from Scott Dwyer at ToxRisk Consulting, LLC in Washington state -- shows that even the holidays do not significantly curtail plaintiff Prop 65 activity.

One particularly notable addition to the list: the first cases are now emerging involving Perfluorooctanoic Acid (PFOA), one of the PFAS "forever chemicals" that is currently dominating the attention of federal and state regulators. Expect to see the Prop 65 case numbers for PFOA and other PFAS chemicals (several are in line to be listed under Prop 65) rise dramatically in coming months.