Prop 65 Plaintiffs Ring In New Year with Aggressive Enforcement

Proposition 65 plaintiff groups are starting 2019 with a practically unprecedented bounty of enforcement actions underway. According to information available from the California Attorney General's Prop 65 website, almost 2,000 60-Day Notices of Violation have been filed since April 2018 with the vast majority remaining unresolved. During the last quarter of 2018 alone, 607 new actions were initiated and 2,358 in total during the year. An incredible 88% (2,083) of the actions filed in 2018 involved phthalates (especially DEHP and DINP), with lead, historically a Prop 65 favorite, a distant but still robust second with 570 actions during the year (note that some actions involve multiple chemicals).

This aggressive spate of activity continues a trend that has seen an almost 50% increase in Prop 65 plaintiff actions since the start of 2017 -- following, coincidentally or not, the landmark Prop 65 reforms adopted in August 2016. (A detailed overview of the 2016 amendments is available here.) In 2017, there was a notable uptick in enforcement actions by Prop 65 plaintiff groups, with 2,711 actions filed (the 2017 totals are skewed somewhat by virtue of one plaintiff filing 675 notices in May 2017 regarding listed substances found in marijuana products; aside from those anomalies, 2,036 new actions were initiated that year).

A quick look at the number of 60-day notices (which are required to be filed with the state AG's office) issued to businesses over the last decade shows just how popular (and increasingly so) Proposition 65 is with plaintiff "bounty hunters":

Why the increase in activity? A number of factors clearly are involved, including the ever-increasing number of listed chemicals, as well as a larger number of active plaintiff groups that reflects a broader public consciousness regarding chemical issues. Phthalates, lead, and, more recently, acrylamide are high profile attention-grabbing substances that are widely found in consumer goods and/or food products and are the focus of a large percentage of Prop 65 actions. Of course, the increasing amount of money paid in settlements and fines (a substantial amount of which is paid to the plaintiff bounty hunter) no doubt is a lure as well.

Kelley Green Law will continue to follow Prop 65 developments closely and periodically examine enforcement trends as we move through the new year.

Happy 2019.