When bounty hunters eye potentially non-compliant products under the California Safe Drinking Water and Toxic Enforcement Act of 1986 (better known as Proposition 65), it’s likely they’re looking for the “dirty dozen” substances.
These bounty hunters—lawyers in California—have created a lucrative niche from finding non-compliant and unlabeled products. Many make a full time living from finding these products, conducting third-party lab testing and filing the associated lawsuit.
While there are more than 900 chemicals on the Proposition 65 list, bounty hunters are primarily targeting unlabeled or mislabeled products containing these 12 substances:
- Phthalate(s)
- Lead
- Cadmium
- Hexavalent chromium
- Acrylamide
- Arsenic
- Benzene
- Carbon monoxide
- Chlorinated tris
- Formaldehyde
- Mercury
- Methylene chloride
In 2017, half of all legal action was related to phthalates, while 30 percent was related to lead and six percent to cadmium. These three substances are at the highest risk of legal action, and companies should pay particular attention to their presence in products.
Learn more about the new labeling requirements and how your company may be impacted in Your Guide to Understanding Proposition 65 Labeling Requirements.
The reason they are commonly targeted is because they are easy for bounty hunters to spot. Phthalates are found in softened plastics and vinyl materials ranging from keyboard cables to pool toys and vinyl garden hoses. As for the other two, cadmium is found in yellow, red and orange pigments, and lead is found in brass alloys.
These substances are often easily identified through a website’s product details page. As such, bounty hunters may view a product containing softened plastic or brass without a warning as an easy win.
Between out-of-court settlements and judgments handed down by the courts, 834 companies paid just over $40 million for Proposition 65 violations in 2018.
Of the $26 million paid in settlements the year before, $20 million went to lawyer fees.
To avoid bounty hunters, companies should ensure they provide:
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Clear and reasonable warnings for potential exposure.
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Warnings for both customers and occupational/service workers.
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Warnings related to intended and foreseeable product use.
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Warnings prior to purchase.
Penalties for non-compliance can be up to $2,500 per day, per violation.
To remain compliant, companies must be aware of any Proposition 65 substances that may be present in parts or products that are sold or could be sold in California. Assent’s Proposition 65 solution allows users to survey the supply chain and leverage real-time reporting features, providing visibility into product composition.
To learn more about Assent’s Proposition 65 Solution, contact our experts today.
