Prop. 65 Legal Alert

Posted in: Business Law, Employment Law, News by Dowling Aaron on

Recently a group of plaintiff attorneys have started filing claims under California’s Proposition 65 also known as the Safe Drinking Water and Toxic Enforcement Act of 1986 for a chemical known as Furfuryl Alcohol.  As of September 30, 2017, all products containing Furfuryl Alcohol sold in California must include a warning meeting the Prop. 65 requirements.

This is of significant concern because Furfuryl Alcohol is a very common chemical found in a variety of products.  Such products include wheat and white bread, crispbread, pasteurized milk, juice beverages, toasted nuts, potato chips, tortilla chips, black tea, microbial fermented tea, soybean, fresh plum, heated beans, rice bran, quince, malt, peated malt, Bourbon vanilla, wild rice, fermented shrimp, roasted almonds, ice cream, cooked apple, apple juice, roasted barley, beans, beef fat, canned beef stew, beer, brandy, cocoa, cocoa beans, coffee, roasted coffee, roasted filberts, honey, heated skim milk, dried mushrooms, roasted onion, yellow passion fruit, roasted peanuts, pineapple, popcorn, roasted sesame seeds and other foods.  Currently, the Office of Health Hazard Assessment has not established a safe harbor level as they have with other products meaning that any level of the chemical in a product is currently actionable.

How Do Prop. 65 Lawsuits Work?

Generally, once a chemical is identified and placed on the Prop. 65 registry, the plaintiff attorneys begin testing products in major retail outlets (i.e. Costco, supermarkets, etc.) to find violations.  Once a type of product (i.e. potato chips, coffee, ice cream) is found to have tested positive for a listed chemical, the plaintiff attorneys begin filing claims against all manufacturers and distributors of the product. This involves everyone in the food production and distribution chain.

What Are the Damages for a Violation of Prop. 65?

The damages for a Prop. 65 violation include a $2,500 per violation penalty.  While the Courts have some flexibility in determining what constitutes a violation, a violation can be considered every unit sold making the potential damages extremely high. In addition, Prop. 65 gives the plaintiff attorneys the right to recover their attorneys’ fees. Unfortunately, the defendants are not given a corresponding right.  As a result, virtually all Prop. 65 cases settle before trial with the lion’s share of any amounts paid going to the plaintiff attorneys.

How Do I Protect My Company?

If a product is produced with Furfuryl Alcohol, it needs a warning on the label or the point of sale.  In the absence of a warning either for products previously sold or future products, there are ways of insulating a company from liability depending on where the company falls in the food production and distribution chain by ensuring that the right contracts are in place.

For more information, contact Matthew Dildine at or (559) 432-4500. Matthew Dildine is the Co-Chair of Dowling Aaron lncorporated’s Agri-Business and Food Law Practice Group and specializes in advising businesses and individuals in the food production industry on Prop. 65, food safety, PACA, product recalls, FDA compliance, and other issues.

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