Food Industry Counsel Unveils Prop 65 Notice Reporter

Posted in Food Regulatory Counsel

Click here to access the FIC Prop 65 Notice Reporter

In 1986, California voters passed Proposition 65, which, in relevant part, requires food companies to provide warnings on food products if the use of the products would expose California consumers to “chemicals known to the State of California to cause cancer, birth defects or other reproductive harm.”  Pursuant to the regulations, if a food product fails to carry a required warning, private citizens, consumer groups and/or plaintiffs’ lawyers can bring lawsuits seeking to recover steep civil fines and large attorney fee awards.

And, no food product, it seems, is immune.  So far, this year, nearly 120 notices of alleged violations have been served by plaintiffs’ lawyers on food companies for allegedly failing to provide the required Prop 65 warnings on their products.  The chemicals appearing most often in food include acrylamide, lead and cadmium.  Surprisingly, plaintiffs’ lawyers are now arguing that food manufacturers should be held liable for the presence of some chemicals, like acrylamide, which are actually formed when the food products are cooked by consumers in their homes.  The increasingly expansive list of food products now subject to ongoing Prop 65 lawsuits for failing to carry the required warnings include common consumer food products such as almonds, baby food, black olives, cinnamon, clams, coffee, cookies, noodle soups, nutrition bars, oregano, oysters, popcorn, potato chips, prune juice, shrimp, and many, many others.  

When a food product is targeted, the private citizen, consumer group or law firm enforcing Prop 65 will serve what is called a “60-Day Notice” on the food manufacturer or retailer alleged to be in violation.  At the same time, they will also provide a notice of the violation to the State Attorney General and other governmental attorneys.  In the event the government does not initiate a claim within 60-days, then the private citizen, consumer group or law firm that first served the notice of violation will be permitted to file a private lawsuit against the alleged violator.  Although, once a notice or lawsuit is served, there are many defenses available, because of the complexity of the scientific and factual issues underlying Proposition 65 litigation, most parties will elect to settle.  

Staying abreast of which food products are being targeted for alleged Proposition 65 violations can be daunting.  As a result, Food Industry Counsel has created the “FIC Prop 65 Notice Reporter” to help food product manufacturers and retailers determine which food products are at risk.  The Prop 65 Notice Reporter will be updated daily, as California posts new notices.  

Click here to access the FIC Prop 65 Notice Reporter.