Anne Marie Ellis of Buchalter. Courtesy photo

Despite the pandemic, 2020 was a record year for Prop. 65 filings. There was a 46% increase in Notice of Violation filings from 2019, driven by the usual filers, as well as many new law firms and noticing parties. There have been 1,346 notices filed between Jan. 1, 2021 and June 3, 2021, compared to 1,327 Notices filed in the same time-period in 2020. These Notices consist primarily of phthalates, lead, cadmium, arsenic, BPA and acrylamide. General consumer goods such as bags, purses, supplements, spices, saws, sandpaper, makeup, exercise bands and gloves continue to top the list.

Department of Justice Updates

The Attorney General's office closely monitors Notice of Violation filings, and in 2021 has already sent four publicly posted warning letters to noticing parties and their counsel. The recent letters state that the Notices failed to provide sufficient information to indicate there is a credible basis to conclude that there is merit to each element of the action on which plaintiff will have the burden of proof. The letter asks counsel to withdraw the Notices immediately. The Notices involve lead in dark chocolate, and DEHP and DINP in medical devices.

This is reassuring news for the defense bar to know that the Attorney General is acting as a back-stop to curb abusive and meritless Notices of Violation. However, businesses that receive a Notice must still be vigilant and consult with an attorney to ensure that the Notices of Violation are procedurally accurate.

Proposed Regulatory Changes

As previously expected, we are expecting major changes to the very popular "short form" label that many businesses have been using since August 2018. I anticipate that OEHHA will implement these changes later in 2021, giving businesses a one-year grace period before the new regulations take effect. The primary change is that the short form label will now require identification of a chemical or chemicals in the product, which is not currently required on the short form label. It also limits the size of the product for which the short form label can be used, and eliminates the use of the short form label on the internet or in catalogs.

This change is opposed by many business and industry groups such as the California Chamber of Commerce. Companies rightfully argue that they have just invested significant resources to comply with an overhaul of the Prop. 65 regulations in 2018, and many pivoted to the short form label at that time. It will be onerous and expensive for companies to overhaul their compliance programs once again, particularly on the heels of the pandemic.