Hunton Andrews Kurth’s Interactive Tracker Reveals Increased Private Enforcement Efforts Under California’s Proposition 65

Private enforcement efforts under California’s Safe Drinking Water and Toxic Enforcement Act, known more familiarly as Proposition 65, are on the rise according to a publicly-accessible, interactive tracker recently developed and released by Hunton Andrews Kurth LLP.

The tracker reveals that over the past two years, private parties have filed more than 3,000 litigation warning notices annually under Proposition 65, one of the most stringent chemical regulations in the country that impacts all consumer products sold, offered for sale, or distributed in California. Filings in both 2020 and 2021 represent a more than 20 percent increase over the approximately 2,400 notices filed in 2019.

Proposition 65 requires companies to include labels on products warning of even low exposures to any of the more than 900 listed chemicals known to the State of California to cause cancer, birth defects, or other reproductive harm. The law also contains a private litigation enforcement mechanism, under which a prospective plaintiff must provide a Notice of Violation to the alleged offender and the California Attorney General, among others, 60 days before filing suit.

Hunton Andrews Kurth’s tracker, which is dedicated to monitoring and identifying trends involving Notices of Violation filed under Proposition 65, is updated regularly with data from the Office of the Attorney General for California. The tracker incorporates a chart which offers a visualization of the volume of Notice of Violation filings and identifies the filer, the type of products affected and the chemicals indicated in each notice. Tracker data can be sorted by date range, filing party, product category and chemical type to derive a variety of interesting trends.

For example:

• Since 2017, more than 15,000 warning notices have been filed.
• For the sixth consecutive year, Di(2-ethylhexyl)phthalate and lead are among the top chemicals identified in Notices of Violation.
• Since 2018, the most active noticing party has filed more than 2,600 notices.
• Food and beverage products have received more Notices of Violation than all other categories by a wide margin.

“As our tracker demonstrates, enforcement activity under Proposition 65 is as robust as ever and companies that do business in California or whose products reach the state’s consumers must remain vigilant,” said Hunton Andrews Kurth partner Malcolm Weiss. “It is critical to have effective compliance and response strategies in place to avoid becoming the target of litigation,”

To view the tracker, click here.

Hunton Andrews Kurth represents clients on all aspects of California’s Proposition 65. For over 30 years, our attorneys have represented trade groups and businesses, throughout the chain of commerce, on Proposition 65 compliance, defense of claims, and rulemaking issues. Our team has extensive technical experience in toxicology and public health, allowing us to dig deeply into claims and rulemakings that have scientific underpinnings. We help clients navigate matters alleging product, environmental, and/or workplace exposures as well as alleged non-compliant discharges to groundwater.

With experience in the law and in close coordination with our client’s needs and goals, our attorneys are prepared to advise companies that receive a Proposition 65 Notice of Violation (whether from the Attorney General or a private party) and to develop efficient defense and resolution strategies.

Please visit our Proposition 65 practice for more information. If you would like to receive email alerts, please subscribe to Hunton Andrews Kurth publications.