California Environmental Law Blog - Insight and information for the environmental and natural resource industry

California's Proposition 65 ("Prop 65") is notable for many reasons, one of which is that the Prop 65 list of chemicals known to the State of California to cause cancer or reproductive harm is long (over 800 chemicals) and is ever-growing.  That being said, the vast majority of Prop 65 lawsuits and alleged violations only involve a handful of chemicals, including acrylamide, cadmium, lead, and phthalates (DEHP, DBP, BBP, DIDP, DnHP).  For that reason, it is notable when a new trend emerges with Prop 65 notices. 

One recent trend is the large number of Prop 65 "60 Day Notices" that have been issued by plaintiffs concerning the chemical Tris(1,3-dichloro-2-propyl) phosphate or "TDCPP."  In fact, in the first two weeks of 2013, Prop 65 plaintiffs have issued more than 40 notices to numerous manufacturers and retailers regarding alleged violations of Prop 65 for TDCPP in products.  The products listed in these notices include foam mattresses toppers, foam-cushioned upholstered furniture, foam mats for children and infants, and foam massage cushions. 

The onslaught of Prop 65 notices regarding TDCPP is not a mere coincidence.  The Office of Environmental Health Hazard Assessment ("OEHHA") added TDCPP to the Proposition 65 list of chemicals on October 28, 2011, and Prop 65 enforcement actions could not be filed until October 28, 2012.  Now, just a few months later, it is clear that many Prop 65 plaintiffs intend to pursue actions regarding TDCPP and we can expect many companies to have to defend cases involving TDCPP in 2013.       

According to OEHHA, TDCPP is used as a flame retardant in foams and as a plasticizer. http://oehha.ca.gov/prop65/hazard_ident/pdf_zip/TDCPP070811.pdf  Companies that manufacture or sell products that may contain TDCPP should take steps to assess whether action is necessary to ensure compliance with Prop 65 and avoid a Prop 65 lawsuit.  For more information on Stoel's Prop 65 services, see http://www.stoel.com/showarea.aspx?Show=8711

Save the Date for a webinar presented by Melissa Jones designed to help you avoid getting caught in the Proposition 65 trap. The webinar will cover significant regulatory and enforcement issues associated with Prop 65, including litigation, product testing, recent trends, and practical advice for compliance.

Check back soon for more information and registration.

As reported by the Associated Press, the California Department of Toxic Substances Control ("DTSC") has issued a report claiming that nail polish has been sold in the State containing the chemicals toluene, dibutyl phthalate (DBP), and formaldehyde, which the agency has referred to as "the toxic trio."

The agency's report noted that the use of the chemicals in the products is legal if properly labeled.  But agency officials said the failure to include warnings about the existence of the chemicals may violate California's Proposition 65.  The AP also reports that the Attorney General's office is determining whether the companies will face legal action, which can include penalities and/or the requirement to provide warnings.

DTSC's press release can be found here: http://www.dtsc.ca.gov/PressRoom/upload/Media-Advisory-Nail-Polish.pdf

A Proposition 65 ("Prop 65") plaintiff has issued the first 60-Day Notice of Violation concerning 4-Methylimidazole (4-MEI).  4-MEI, a chemical compound used to make certain products, is one of the over 850 chemicals on California's Prop 65 list of chemicals known to cause cancer or reproductive harm.  4-MEI was placed on the Prop 65 list in 2011 because the National Toxicology Program concluded that 4-MEI caused lung tumors in laboratory animals.

On January 25, 2012, the Center for Environmental Health (an organization that frequently files lawsuits to enforce Prop 65) issued the first 60-Notice of Violation relating to 4-MEI.  The Notice alleges that several food manufacturers and supermarkets violated Proposition 65 by selling carbonated soft drinks with caramel coloring that contain 4-MEI without a Proposition 65 warning. 

The Office of Environmental Health Hazard Assessment ("OEHHA") has issued a fact sheet on 4-MEI, available at http://oehha.ca.gov/public_info/facts/pdf/4MEIfacts_021012.pdf.  OEHHA notes that products that potentially contain 4-MEI include "certain colas, beers, soy sauces, breads, coffee, and other products."

It remains to be seen whether other 60-Day Notices will be issued in the future concerning 4-MEI.  But since the chemical occurs in other food and beverages, particularly those that contain caramel coloring agents, it is important for companies to be on alert regarding the presence of this chemical in their products.

Yesterday the California Attorney General's office sent a letter to the Proposition 65 plaintiffs' bar regarding the use of releases in Proposition 65 cases.  The AG's letter noted that it is concerned about releases in Prop 65 cases that have been given "in the public interest."  The letter noted that these releases are typically problematic when they attempt to combine the release being given in the public interest with the release being provided by the plaintiff in its individual capacity.  The AG stated that these releases have become "convoluted" or, in some cases, "overbroad, meaningless, or affirmatively misleading."

To be clear-- a plaintiff in a Prop 65 may provide a release "in the public interest" and plaintiffs in Prop 65 cases regularly do so.  However, the AG noted that such releases may be provided only for alleged violations of Prop 65 as alleged in the original, corresponding, 60-Day Notice of Violation.  The AG expressed concern that some releases have attempted to cover alleged Proposition 65 violations that were outside the scope of the corresponding Proposition 65 60-Day Notice.  The AG then provided in the letter recommended release language for future settlements/consent judgments.  This language is only applicable when the release is being given in the public interest.  Additionally, the AG stated that it believe the appropriate language for releases is "in the public interest," not "on behalf of the general public" or "the People."  The AG argued that this language tracks the statutory language and thus, is what should be used in releases.

The AG did not opine or take a position on releases by Prop 65 plaintiffs which are given by plaintiffs in their individual capacity only, other than to note that such releases should be broken out in a separate section from the public release.

This letter should not come as a surprise to the Prop 65 plaintiffs' bar (or those, like myself, in the Prop 65 defense bar).  And the AG does, from time-to-time, send out such communications to make its position on such subjects known to Prop 65 practitioners.  But it is something that companies that are currently involved in Prop 65 litigation should review and keep in mind during settlement negotiations. 

The AG's full letter can be found here: http://ag.ca.gov/prop65/pdfs/prop65releases_cases.pdf

Earlier this month, a consumer watchdog group published a document arguing that certain bath products continue to contain a preservative that includes formaldehyde and possibly 1,4-Dioxane.  This same organization filed a report in 2009, which resulted in lawsuits under California’s unfair competition law (“UCL”; § 17200 of the California Business and Professions Code) and Proposition 65 (the Safe Drinking Water and Toxic Enforcement Act of 1986).  In 2009, the same group alleged that preservatives in bath products were not as safe as companies claimed, since they contained chemicals that the group alleged increase the risk of cancer.

Many of the prior lawsuits were successfully defended, but defense comes at a cost.  If new companies become targets of this consumer watchdog group or others like it, they may want to engage counsel to explain to the group (and plaintiffs’ attorneys) that existing preservatives advance public health concerns by reducing the risk of bacterial infection or other problems.  Additionally, some consumer-driven testing methodologies do not represent actual risks to users; this can also be an effective point to raise in litigation.  As suggested by the watchdog group’s recent report, the phase out of formaldehyde-containing preservatives in cosmetics has less to do with the alleged cancer risk and more to do with other business and regulatory issues.       

Class action attorneys and plaintiffs may attempt to take advantage of the November 1, 2011 report and instigate litigation in environmental and consumer protection actions.  In light of this concern, companies that sell personal care products, such as bath products, may wish to review their labels and raw material supply to reduce the risk of litigation.  Companies that get dragged into litigation  should retain experienced counsel immediately for a thorough evaluation of cases and the methods relied upon by plaintiffs in support of their lawsuits.  Indeed, early dialogue between a well-prepared defense counsel and a plaintiff can make a significant difference in both the cost and time devoted to litigation. 

Governor Brown signed into law new legislation (SB 646-Pauley) that ends what has been described as a dual track system for enforcing California's Lead Containing Jewelry Law (Health and Safety Codes Section 25214.1-25214.4.2).  The law, which regulates the levels of lead in jewelry, also contained an exemption for retailers that had joined a settlement in the form of a consent judgment with the California Attorney General's office.  That consent judgment limited the settling defendants’ penalties for ongoing or future violations.  Other companies that had not entered into the settlement were subject to regular penalties that can be as high as $2,500.00 per violation per day.  The new law removes the exemption for companies that had previously settled and subjects them to the same level of penalties as if they had not entered into the consent judgment.  Not surprisingly, some of the settling defendants that no longer have the exemption that they bargained for in the consent judgment do not believe that this is a fair result.  When SB 646 takes effect on January 1, 2012, California Department of Toxic Substances Control will have the sole authority to enforce the state’s regulations concerning lead in jewelry and impose fines on violators.  California’s law restricting cadmium in children’s jewelry (to 300 parts per million) also takes effect on January 1, 2012.   

For additional information regarding SB 646 contact Melissa A. Jones or Lee N. Smith

A group of jewelry retailers, manufacturers and suppliers entered into a Proposition 65 settlement agreement with Center for Environmental Health (CEH) several months ago concerning cadmium in jewelry. The settlement was formalized in a consent judgment approved by Alameda Superior Court in CEH v. Aeropostale, Inc. 

As in other Prop 65 consent judgments, this settlement contained a provision that allows other companies to join the settlement by agreeing to “opt-in.” A company can “opt-in” if it has received a Notice of Violation from CEH, or if it has not received any notice but wants to be subject to the terms of the consent judgment and be protected from other lawsuits regarding this chemical. 

For companies that have already received a notice regarding cadmium in jewelry from CEH, joining the settlement as an opt-in may be an efficient way to resolve the pending Proposition 65 action. It does require a company to pay the settlement amount of $55,000 and agree to the injunctive relief terms of the consent judgment. Joining the opt-in is a less attractive option for companies that haven’t received any Notice of Violation regarding cadmium in jewelry.  

The deadline for opting-in is Friday, October 21, 2011.  If you are concerned about potential cadmium in jewelry that your company manufactures, imports or sells in California, you should talk to an attorney to get more information about the opt-in. Stoel Rives is here to help with your Proposition 65 needs.