Proposition 65 was approved by California voters in the 1980s to ensure that food sold in the state that contains chemicals that could cause cancer or reproductive harm, would require a warning label stating that fact. The most targeted chemicals include lead, acrylamide, arsenic, cadmium, and mercury.
During the latest SFA Regulatory Conference Call, Sophia Castillo, JD, and a partner in Downey Brand’s San Francisco Office, said that the number of Prop 65 claims has grown during the pandemic. She shared the ingredients and products that are most likely to get litigated and advice on how to avoid litigation.
Biggest Offenders
“In April of 2020, there were more Prop 65 claims made than in any other year before,” said Castillo. Of the food claims that were made, the vast majority were targeted at products containing acylamide, which occurs during a chemical reaction process of golden-browned crunchy foods. Examples of acrylamide-containing food include breads, bagels, waffles, ice cream cones, chips, veggie sticks, cookies and tea biscuits, pretzels and popcorns, nuts and nut products, and even olives and olive products.
Another category that is seeing a lot of attention is seafood that attorneys claim contains lead and/or cadmium, noted Castillo. Baby food and fruit purees are also seeing more action. Historically there has been a lot of litigation around baby food, but there has been a rise in cases in past months, Castillo said.
Other targeted foods include fresh spinach that contains metals, canned goods that contain furan, dietary supplements, and vinegar that contains carbaryl.
Be Prepared and Proactive
“Given the likelihood of claims arising, it’s good to be ahead of the curve on these issues,” said Castillo. If you make a product that is likely to catch the attention of litigators (like any of those mentioned above), it’s a good idea to get ahead of the claims, if possible. Because the statue hinges on the amount of exposure, food makers can be prepared with information about how much their product is consumed and what that means for consumer exposure.
For example, if a product is consumed very frequently by consumers, but only contains trace amounts of a chemical, an argument could be made that the exposure is low. Or, if the chemical level is higher, but consumption is lower, the same argument could be made. “A deep dive analysis is needed to find out whether or not your product contains these chemicals, especially at a level that will trigger a claim. Work with experts to determine the typical consumption of your product and if there is a risk for your business,” advised Castillo.
Listen to the full recording now.
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