Bruce Nye of Scali Rasmussen Review of CA Prop 65 Notices of Violation 2018

Mon January 7, 2019

We have just completed our review of the 2,358 Notices of Violation issued during 2018, and want to make sure you are aware of the listed chemicals that were the subjects of notices during the past year. As always, the notices made the following allegations:  (a) that companies had exposed Californians to listed chemicals without giving clear and reasonable warning;  and (b) that companies had exposed drinking water to listed chemicals (note that Proposition 65 makes the latter unlawful, and no warning fixes the problem).  While there are approximately 960 listed chemicals, fifty-three were the subjects of 2018 notices.

As has long been the case, the most commonly noticed chemicals were Di(2-ethylhexyl)phthalate (DEHP), the subject of 1,158 notices, and lead and/or lead and lead compounds, noticed 528 times.  The ten most commonly noticed chemicals were these:

Di(2-ethylhexyl)phthalate (DEHP) C & R 1,158
Lead and/or lead and lead compounds C & R
Diisononyl phthalate (DINP)
  C 257
Acrylamide C & R 143
Cadmium C & R 104
Di-n-butyl phthalate (DBP) R 69
Bisphenol A (BPA)                                                         R 46
Carbon Monoxide R 43
Arsenic C & R 41
Mercury & mercury compounds R 36

In other words, 92.8% of the noticed exposures involved one or more of ten chemicals, and 64.5% involved DEHP and lead or lead compounds.

Of the other chemicals noticed, the following were noticed ten or more times:  styrene (23), wood dust (22) ethylbenzene (21), benzene (19), nickel (18) benzofuron (17), quinolone and its strong acid salts (17) and polychlorinated biphenyls (10).

And the following were noticed between two and five times:   Marijuana smoke, Di-isodecyl phthalate (DIDP), benzophenone, Chromium (hexavalent compounds), formaldehyde, Tetrochloroethylene (Perchloroethylene) and toluene.

And finally, twenty-seven chemicals were noticed only once: flame retardants Tris(1,3-dichloro-2-propyl) phosphate (TDCPP) and Tris(2-chloroethyl) phosphate, 1,1-Dichloro-2.2-bis(p-chloropheny)ethylene (DDE), 1,4-Dioxane, Bromodichloromethane, Carbon disulfide, Chloroethane (Ethyl chloride), Chloroform,  DDE (Dichlorodiphenyl-dichloroethylene), Trichloroethylene, Vinyl chloride, 1,3-butadiene, acetaldehyde, benz[a]anthracene, benzo[a]pyrene, soot, benzo[b]fluoranthene, dibenzo(a,h)pyrene, benzo[k]fluoranthene, carbazole, chrysene, chloroform, furan, napthalene, dichloromethane, and indeno[1,2,3-cd]pyrene.

Note that many of the infrequently noticed chemicals have been noticed only in connection with airborne exposure, the majority allegedly caused by charcoal and “steam stones” in hookah bars.

There have been some changes in frequency, but not that many.  When we analyzed the 2016 notices, the ten most frequently noticed chemicals were Lead or lead compounds, DEHP, DINP, Cadmium, Carbon Monoxide, Acrylamide,  DBP, Benzophenone, Coal tar, DBP and BPA. 

We also analyzed notices for the first five months of 2017, and noted that the most frequently noticed chemicals were   DEHP, Lead or lead compounds, DINP, Marijuana Smoke, Acrylamide, Cadmium, DIDP, BPA, Myclobutanil and Carbaryl.  The latter two are pesticide / fungicides that were allegedly being found in cannabis edibles sold at medical marijuana dispensaries. For unknown reasons, the attorney general strongly objected to the many notices of these pesticide /fungicides. The private party enforcer did not proceed with them, and they haven’t been noticed since.

The fact that the most frequently noticed chemicals are those shown in our 2016, 2017 and 2018 analysis is not a guaranty that other chemicals won’t be the subjects of Proposition 65 notices and litigation.  Ideally, companies doing business in California should be aware of the risk that their activities or products in California may be alleged to cause exposures to any of the listed chemicals without required warnings. However, the “top ten chemicals” for each of the past three years certainly constitute a starting point for any risk management efforts.

Our Proposition 65 team at Scali Rasmussen continues to provide guidance on Proposition 65 compliance and avoiding claims under this statute, as well as defending against claims when made.  Feel free to contact us if you have any questions on these subject.

Thank you for your attention and best wishes for the new year.

Bruce Nye, Attorney of Counsel
Scali Rasmussen | Ahead of the Curve
1901 Harrison Street, 14th Floor
Oakland, CA 94612
Tel: 510.248.4775