Member Article

This is not a coronavirus update, but as you can expect, the number of Prop. 65 filings has not decreased significantly during the pandemic. Between March 2^nd and April 14^th, there were four hundred sixty-nine (469) 60-Day Notices of Violation filed, compared to five hundred ten (510) 60-Day Notices filed between January 1^st and March 1^st. As you may know, California’s courts are not likely to re-open until around June 1^st. If you have a Notice of Violation that is expiring without settlement and on the verge of transitioning into litigation, there will be an inevitable delay in filing. In fact, in a recent emergency order, the Judicial Council tolled the statute of limitations from April 6^th to ninety (90) days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted. What that means is that the floodgates of litigation will open after the 90 days expires.

From a substantive standpoint, a majority of the recent notices involve phthalates, lead and lead compounds, androstenedione in supplements and acrylamide in food products. Some of the commonly targeted products include: buckets, blood pressure monitor, pliers, purses, bags and backpacks with plastic components, wallets, manicure kits, packaging of dog treats, booster cable clamp sets, seaweed, supplements, ceramic dishes, canned fruits and beans, crackers and baby formula.

The familiar attorneys and noticing parties are still filing and include: Ecological Alliance (Custodio & Dubbey LLP), Consumer Advocacy Group, Inc., Paul Wozniak (Clifford A. Chanler), Zachary Stein (Kevin J. Cole), Anthony Ferreiro and Ema Bell (Evan J. Smith), Key Sciences and Clean Label Project (Davitt, Lalley, Dey & McHale), Shefa LMV, Inc. (Daniel Greenbaum) and Consumer Advocacy Group (Reuben Yeroushalmi). The good news is that I have dealt with most of these lawyers and have a good understanding of their tactics and strategies in prosecuting these notices of violation.

In other OEHHA related news, on February 20^th, thirteen (13) settling defendants entered into a consent judgment related to their alleged failure to provide the appropriate alcoholic beverages warning when selling alcoholic beverages over the internet or through mobile device applications. After payment of a civil penalty in the amount of $2,460 ($435 to the Attorney General, $375 to OEHHA as a civil penalty and $1,660 to the noticing party for fees and costs), they each agreed to provide a warning to consumers either over the internet or through mobile device applications with the appropriate warning.

On April 9^th, OEHHA also issued a safe use determination for exposures to Bispehol A (BPA) from certain polycarbonate eyewear products manufactured, distributed or sold by The Vision Council Member Companies. OEHHA determined that the exposure estimates fall below the “Maximum Allowable Dose Level” (MADL) for BPA (dermal exposure from solid material(s) of 3 micrograms per day) and therefore do not require a Prop. 65 warning.

If you need assistance with any Prop. 65 matters or rapidly evolving coronavirus related matters, the firm and I stand ready to assist over multiple practice areas including litigation, insurance coverage, bankruptcy, financing, real estate and corporate.