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Proposition 65 and the Food and Beverage Industry

January 11, 2019

California’s Proposition 65 has a direct impact on the food and beverage industry.  The recent changes to the Regulation include specific warning language applicable to foods and beverages. 

What is Proposition 65?

California’s Proposition 65 – the “Safe Drinking Water and Toxic Enforcement Act of 1986” – requires that if any product sold in  California contains any of roughly 900 specified chemicals or toxicants, consumers must be warned about possible exposure.  The regulations apply to any product sold in California. This includes sales over the internet or through a third party. A failure to comply with the warning requirements can subject the offending company to a civil penalty of up to $2,500 per violation, per day.

Proposition 65 is a private attorney general statute, and in addition to claims brought by the Attorney General, there are law firms whose sole focus is bringing claims and seeking penalties (on behalf of the State) and attorney fees (on their own behalf). 

What is the impact on Food/Beverage Companies?

Food and Beverage products are a particular focus of Proposition 65.  Food items, being generally inexpensive to obtain and test, are particularly likely to be a target for litigation. There have been hundreds of claims brought against food and beverage manufacturers. The chemicals typically at issue are lead, cadmium, acrylamide and furfuryl alcohol.  Some representative claims include:

  • Lead and cadmium in chocolate
  • Acrylamide in peanut butter
  • Acrylamide in potato chips
  • Lead in candied ginger
  • Lead in seaweed

Even if the product itself does not contain any listed chemical, the packaging may.  Packaging, rather than the actual product, frequently leads to Proposition 65 claims. 

Does the Company have to be located in California to be at risk?

No.  Because Proposition 65 deals with products sold in California, it applies even if the company itself never does business in California. Any company who manufacturers or distributes a product that ends up being sold in California (at retail or through the internet or catalog) must comply with Proposition 65, even if it is not the company making the sale in California. 

What can you do?

If you manufacture, distribute or sell products that may end up for sale in California, you should be aware of Proposition 65, its applications and requirements. This may include steps such as testing products (or their packaging) or applying warning labels. 

Clark Hill PLC has a team of lawyers experienced in Proposition 65.  If you have questions or need assistance with any Proposition 65 matter, please contact Michael Sachs or any member of Clark Hill’s Proposition 65 team.

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