O
ne would think that a global pandemic
might quiet the Prop 65 litigation in
California. Think again. In March 2020,
350 notices of intent to sue were filed, according to
the California Attorney General's office. In April,
243 cases were filed. That compares to an average
of 208 cases per month over the past three years.
"Prop 65 has an attorney's fee provision
that encourages lawyers to file cases, settle, and
then file again," said Sophia Castillo, an attorney
with Downey Brand in San Francisco, during the
Specialty Food Association's monthly regulatory
call on July 13. The law, adopted in 1986, allows
"any person in the public interest" to bring a case.
There have been 30,000 Prop 65 notices filed since
1988 and there appears to be no end in sight.
Good Intentions
Prop 65 was championed as a means to encourage
corporations to "clean up" their act. Originally
entitled the "Safe Drinking and Toxic Enforcement
Act," it was passed by California voters in 1986 by
a 63 percent to 37 percent margin and has been part
of the California litigation landscape ever since.
By requiring all companies that make products
with cancer-causing elements to warn consumers,
the belief was that companies would reformulate
products so that they did not have to post the
warning, "known to the State of California to cause
cancer, birth defects or other reproductive harm."
More than 900 chemical and other elements
are now on the Prop 65 list. It affects industries
ranging from food manufacturers to parking
garages to candlemakers to fly fishing lure creators.
The chemicals of significance to the food and
beverage industry include lead, acrylamide, arsenic,
cadmium, and mercury. And court action continues
to increase. Since 2018, there have been 829 Prop
65 settlements totaling more than $35 million,
according to the California Attorney General's
office. The state estimates that approximately
75 percent of the settlements go to plaintiff's
attorneys.
In August 2018, California issued new
requirements for the warning label as follows:
Prop 65 Update: Enhanced
Activity During the Pandemic
BY RON TANNER
WARNING
SPECIALTY FOOD SPECIALTYFOOD.COM
SPECIALTY FOOD
MAKER
