Disposable Packaging: Can It Amount to An ‘Exposure’ Under Proposition 65?

Proposition 65, known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires that businesses with 10 or more employees provide a clear and reasonable warning to individuals before knowingly and intentionally exposing them to a chemical known to cause cancer or reproductive toxicity. The infamous Proposition 65 list now contains more than 900 such chemicals under strict regulation by governmental agencies and plaintiff consumer watchdog groups, commonly known as “bounty hunters.” The Office of Environmental Health Hazard Assessment (OEHHA) is the lead agency that implements Proposition 65, maintains the Proposition 65 list, and has authority to amend the regulations to further the purposes of the Act.

OEHHA has concluded that di(2-ethylhexyl) phthalate (DEHP), a chemical known as a plasticizer that is often added to plastics to make them soft, flexible, and supple, may cause cancer and reproductive harm. As a result, DEHP was added to the Proposition 65 list, which has proved complicated because of its use in a wide variety of products that consumers use in ways that do not create the typical risk of exposure for which Proposition 65 protection was intended. Between January 1, 2018, and the present, over 5,000 Notice of Violations (NOVs)were served on businesses for alleged violations of Proposition 65, based on the presence of DEHP in their products. Violations carry financial penalties and settlements are often conditioned on a business labeling its products as carcinogens or reproductive toxicants, which may lead consumers to switch to another competing brand that has no such warning.

DEHP is found in a variety of soft plastic consumer products including shower curtains, furniture, automobile upholstery, shoes, backpacks, handbags, and medical devices, to name a few. But lately, we have seen an uptick in plaintiffs filing NOVs for alleged DEHP in disposable packaging – e.g., packaging such as a plastic bag that is used to market the product but is not meant to be retained once it has been opened.

Is handling the disposable packaging once or twice sufficient to create the requisite exposure under Proposition 65? Likely, it is not. And yet, the Proposition 65 plaintiff watchdog groups have been using disposable packaging as an alleged basis for an NOV in an effort to cast a wider net to extract significant monetary payments and injunctive relief under the statute.

Businesses that have received NOVs and chosen to settle have had to agree to (1) reformulate their product packaging to be phthalate-free or to contain no more than 0.1% DEHP or: (2) post Proposition 65 warnings in the retail stores where the product containing DEHP was/is offered for sale, (3) send retailers and distributors notification letters advising the recipient that the product packaging contains DEHP known to the State of California to cause cancer and birth defects with Proposition 65 warning stickers the recipient must apply to the product, and (4) post a Proposition 65 warning and link to the California State Proposition 65 webpage to any e-commerce websites where the product is/was sold. They must also pay civil penalties and the attorneys’ fees and costs of the party that filed the NOV.

Businesses that use disposable packaging on consumer goods such as cosmetics and skincare products, sheets and pillowcases, and photo albums, could take a substantial hit to their profit margins if an NOV is not properly handled. If your business receives an NOV for alleged DEHP in disposable packaging, you should act quickly to retain experienced Proposition 65 counsel in order to negotiate with the plaintiff and attempt to have the NOV withdrawn and to avoid the burden and expense of negotiating a Proposition 65 settlement.

Arent Fox’s Proposition 65 Counseling & Litigation team offers a highly seasoned team of attorneys skilled in the complexities and nuances of Proposition 65 and product-related counseling and litigation. Attorneys in the group have successfully negotiated with plaintiffs to have NOVs withdrawn. They have also advised clients on the scientific and technical aspects of Proposition 65 in order to avoid such situations in the first place.