New Trends in Proposition 65 Litigation – 2014
February 21 2014
By: David Gabor
The following is a recap of trends as to targets of recent California Proposition 65 litigation. As anyone who has been named in such a suit can attest, it is important to understand the legal landscape so that a potentially affected entity can be in position to be ahead of the next potential wave of Prop 65 lawsuits. This is particularly true insofar as, historically, the enforcement bar (read: “bounty hunters”) finds one kind of product and then sues literally every company it can find that sells that type of product. By getting ahead of this, companies with forward-looking compliance programs can be proactive (either within their own operations or with their suppliers) so that they are not just “waiting to get sued” on various product lines.
Based on the California Attorney General’s 60-day notice website, there were 1,094 notices filed in 2013. As listed below, by far the biggest trend was DEHP cases for a wide variety of products. That was followed by a mid-year rush on upholstered furniture products (chairs, office chairs, ottomans, couches, etc.) that contained a certain kind of filling.
A review of the list demonstrates the following patterns of products that are “hot targets.” Note that the below “top 10 “list is not exhaustive. For a comprehensive look at 2013 notices, see the CA Attorney General website regarding Prop. 65 notices here:
1. DEHP and or DPB tops the list, with products that contain PVC or soft plasticized rubber still leading the way, including (but not limited to) knife grips, tote bags, shower curtains, key chains, cables, grips, cookware, long handled tool grips, tape, tools, mats, eyewear, vinyl floor mats, vinyl pouches of all kinds, etc. It’s worth noting that vinyl products are making the list with increased frequency.
2. Lead is still the bounty-hunters’ go to chemical with brass products still high on the list, water sprayers and nozzles of various types, belts, drains, deadlocks and deadbolts, ceramic or glass jars with leaded decorations, and various other items.
3. Coconut oils (cocamide diethanolamine) and benzophenone in a wide variety of products, including hand soaps, hair gels,and lotions.
4. DPB in footwear of all kinds. Virtually anything with a composite rubber/plastic sole is a target, along with rubberized eyelets, logos, etc.
5. TDCPP in furniture including padded chairs, office chairs and baby seats, etc. – this was another huge target area last year and looks to continue that way into 2014.
6. Baby products. Although this is a subset of DEHP (above) it is worth its own category because claims that baby products cause cancer terrorize companies with visions of plummeting product sales. The targets of these notices are often in soft plastic baby bottles, grips, and pacifiers or in furniture items such as changing pads, nursing pillows and high chairs.
7. Lead or arsenic in food items. Increasingly we are seeing various food products being targeted, such as lead in cookies, licorice, baking mixes, salsas, soups, oysters, honey, and fruit snacks. The AG beat back attempts to sue for arsenic (but not lead) in certain — but not all — rice products, but that is a rare bright spot in what otherwise is a plaintiff’s “growth category.”
8. Lead and lead compounds in various dietary supplements.
9. Ethyl alcohol (when associated with alcohol abuse) in certain alcoholic beverages.
At the bottom of the list is actual discharge into water (which is far more in keeping with the original proposition 65 concept than the bounty hunter cases above). There were not many of these cases, but the Disney companies got tagged for such discharge, as did the Jones Valley Resort for discharge of lead and lead compounds into the Feather and Sacramento Rivers.
Increasingly, enforcement groups are demanding reformulation as a condition of compliance, or as a lever with which to lessen penalty provisions. This direct action iis not authorized by statute and is an abusive strong-arm tactic of the bounty hunters. Targeted companies will have to make a decision as to how to respond to such demands. See Gabor, D., “Proposition 65 – 27 Years Later and Still No Observable Effect,” WT Publications, January 23, 2014.
Finally, no recap of 2013 would be complete without noting that California Governor Jerry Brown undertook a significant amendment to Proposition 65 legislation via the passage of AB 277. That new legislation narrowly protects restaurants, parking lots and food service organizations from most bounty hunter lawsuits related to exhaust, alcohol, tobacco or food on premises by being able to retroactively post notices and pay a nominal $500 penalty. While not particularly far-reaching, this is a hopeful sign that further reforms of the once-cottage industry – now full-blown big business – of Proposition 65 lawsuits that may finally be getting the legislative re-write that it so richly deserves. For now, though, in the vast majority of instances, it remains a tax on businesses seeking to operate within the borders of California.