Companies shelled out more than $25 million last year in fines for failing to comply with the Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Proposition 65.
A dollar store was fined $935,000 after flip flops and other products sold were found to exceed acceptable levels of Di(2-ethylhexyl)phthalate (DEHP). A similar fine was imposed after a grocery store sold dark chocolate bars from several manufacturers without a warning addressing the cadmium in the chocolate.
Those were just two of approximately 700 Proposition 65 violations in 2017, most of which can be attributed to bounty hunters — lawyers who make a living off settlements from non-compliant products. Of the $26 million collected in settlements, $20 million went to lawyer fees.
Bounty hunters can make a lucrative career from finding products that are non-compliant and missing labels. Companies are often ordered to reformulate the product or repackage it with a warning, but such court orders are generally accompanied by a fine. Settlements have doubled in the past decade, as lawyers have launched increasing numbers of complaints that have resulted in fines.
Many settlements are related to phthalates (DEHP, Diisononyl phthalate and Dibutyl phthalate) and metals such as lead, cadmium and arsenic, but there has been a recent surge in settlements related to Bisphenol A (BPA) and acrylamide in roasted or fried foods.
As new Proposition 65 requirements come into effect at the end of August 2018, bounty hunters may turn their attention to products that are non-compliant with new labeling rules. Among the new requirements, consumer product warnings will need to include the name of at least one listed chemical, a link to www.p65warnings.ca.gov, and, in most cases, a yellow warning symbol. Products manufactured after August 30, 2018, will be required to meet the new requirements.
There has been speculation that bounty hunters will target mislabeled products, such as those that list nickel instead of lead in the warning, as nickel is generally perceived as less harmful by consumers. With the budget to complete independent testing, it is possible that bounty hunters will pursue this as a new avenue to identify non-compliant products.
To avoid costly fines and loss of market access, any company that sells to consumers in California should survey their supply chain and flag Proposition 65 chemicals that exceed threshold levels. Assent Compliance’s Product Compliance Suite can help you collect data from your suppliers and cross-reference it with new additions to the Proposition 65 chemical list.
To learn more about how Assent Compliance can streamline your compliance process for Proposition 65 requirements, book a live demo with our experts.
