Proposition 65 – Conkle, Kremer & Engel, PLC

Prop 65 Notices and Lawsuits Target Cocamide DEA

Cocamide DEA (coconut oil diethanolamine condensate) is a common ingredient in personal care products. It is a viscous liquid used as a foaming agent in shampoo and soap products and as an emulsifying agent in cosmetics. It can be found in shampoos, liquid soaps, body washes and bubble baths, among other products. In June 2012 Cocamide DEA was added to the list of Proposition 65 chemicals, and warning requirements took effect one year later, on June 22, 2013. To date, Notices of Violation concerning cocamide DEA exposure have been served on more than 350 businesses, and public enforcers have filed at least 16 lawsuits, most of them naming numerous defendants. Lawsuits have been filed in both Los Angeles and Alameda Counties.

Proposition 65 is California’s right-to-know statute that requires businesses to provide clear and reasonable warnings before exposing Californians to a wide range of chemicals known to cause cancer or reproductive harm or both. Proposition 65 requires a 60-day Notice of Violation to be served before public enforcers may file a lawsuit for alleged violation of the law. The public enforcers who have served Proposition 65 Notices of Violation with respect to exposure to cocamide DEA include Center for Environmental Health, Shefa LMV LLC and ProtectConsumers LLC. In addition, a number of individuals have become involved in Proposition 65 enforcement actions concerning cocamide DEA. These individuals – Mark Lewis, Crystal Gerard, Mark Bates, Natisha Meloncon and Latonia Edge – are all represented by The Law Offices of Morse Mehrban.

2013 has been a particularly difficult year for manufacturers, distributors and sellers of personal care products. In addition to cocamide DEA, other chemicals commonly found in personal care products and cosmetics became subject to Proposition 65 enforcement in 2013, including benzophenone and diethanolamine.

Businesses should carefully review the contents of the products they manufacture or distribute to determine whether those products may contain cocamide DEA. Notices of Violation followed by prompt lawsuits have become the norm for alleged exposure to cocamide DEA. Businesses must be proactive in protecting themselves from Prop 65 bountyhunters. CK&E regularly helps clients with Prop 65 compliance issues. If a Notice of Violation is received, CK&E handles responses to Notices of Violation and defense of businesses in Prop 65 actions to help resolve claims as efficiently and economically as possible.

24
DEC

Beauty Industry, Manufacturing, Personal Care Products, Proposition 65, Regulatory Compliance

benzophenone, Center for Environmental Health, Cocamide DEA, coconut oil diethanolamine, diethanolamine, Morse Mehrban, Notice of Violation, Proposition 65, ProtectConsumers LLC, Shefa LMV LLC

Happy Anniversary: 1,3-Dinitropyrene Becomes Subject to Prop 65 Enforcement on November 2, 2013

Posted by: H. Kim Sim

Starting November 2, 2013, Proposition 65 enforcement actions may be taken against businesses for exposure to the chemical 1,3-dinitropyrene without a clear and reasonable warning. 1,3-dinitropyrene was added to the Prop 65 list of chemicals on November 2, 2012 as a chemical known to the state of California to cause cancer. Under Prop 65, enforcement actions may not be taken for one year after the listing, so as the anniversary arrives on November 2, 2013 this chemical will become subject to enforcement actions. 1,3-dinitropyrene is an environmental contaminant that has been measured in engine exhaust and emissions from kerosene heaters and gas burners.

Also starting November 2, 2013, alpha-methyl styrene is actionable as a chemical known to the state of California to cause cancer, based on its November 2, 2012 listing. Alpha-methyl styrene is used in the manufacture of plasticizers, resins and polymers. However, for all practical purposes, the addition should not affect businesses’ obligations to warn about exposure to alpha-methyl styrene, as it was already listed in 2011 as a chemical known to cause reproductive toxicity.

The Office of Environmental Health Hazard Assessment (OEHHA) has not established any specific safe harbor levels for either 1,3-dinitropyrene or alpha-methyl styrene.

Conkle, Kremer & Engel routinely counsels clients on regulatory compliance, including compliance with Proposition 65. We monitor the latest developments to Prop 65 in order to provide expert guidance to companies doing business in California.

1
NOV

Beauty Industry, Manufacturing, Proposition 65, Regulatory Compliance, Technology

Alpha-Methyl Styrene, Dinitropyrene, Prop 65, Prop 65 Enforcement Actions

Navigating Civil Regulatory Issues: CK&E Presentation Highlights Key Regulations for Beauty Companies Doing Business in California

Posted by: Conklelaw

Conkle, Kremer & Engel attorneys were featured speakers at the Beauty Industry West presentation “Navigating in Challenging Regulatory Waters: Updates on California and Federal Compliance.” About 150 entrepreneurs, consultants, executives and beauty industry professionals attended the event at the Crowne Plaza Hotel LAX in Los Angeles on October 15, 2013, which included a valuable networking session and a post-presentation Q&A.

CK&E’s presentation about legal regulatory issues for personal care product companies doing business in California included an overview of the California Organic Products Act (COPA), Proposition 65 (California’s Safe Drinking Water and Toxic Enforcement Act) and California’s Green Chemistry Initiative including the new Safer Consumer Products Regulations. Conkle, Kremer & Engel’s materials from the BIW event, including the “Navigating Civil Regulatory Issues” presentation and its “Resource Guide for Regulatory Compliance,” are available for download on CK&E’s Regulatory Compliance web page.

Co-presenter Donald Frey, an industry veteran, regulatory expert and product development and innovation consultant, presented on key regulatory issues from the business perspective, including how to effectively deal with regulators. Mr. Frey has generously agreed to share his presentation, available for download here.

Among the questions and answers covered after the presentation were the addition of titanium dioxide (airborne, unbound particles of respirable size) to the Proposition 65 list of chemicals, responsible entities for purposes of compliance with the Safer Consumer Products Regulations, and the determination of organic ingredients under the National Organic Program standards.

Conkle, Kremer & Engel attorneys are frequent speakers at events of interest to the beauty industry due to their expertise in representing manufacturers, distributors, suppliers, retailers and salons in all aspects of their business, including the challenges of regulatory compliance.

15
OCT

Beauty Industry, California Organic Products Act, Fashion, Food, Craft Beer and Nutrition, Green Chemistry Initiative, Proposition 65, Regulatory Compliance, Safer Consumer Products Regulations, Sales, Technology, Unfair Competition

Beauty Industry, Beauty Industry West, BIW, Bounty Hunters, Chemicals of Concern, COPA, Initial Candidate Chemicals, Notice of Violation, OEHHA, personal care products, Prop 65, Prop 65 Reform, Proposition 65, Proposition 65 Reform, Safe Harbor, UCL, Unfair Business Practices, Warning Letter

Five Additions to Prop 65 List of Regulated Chemicals

Posted by: H. Kim Sim

The Proposition 65 list identifying chemicals known to the State of California to cause cancer or reproductive harm got a little longer in September 2013, with the addition of five new chemicals by the Office of Environmental Health Hazard Assessment (OEHHA).

Effective September 13, 2013, chloral, chloral hydrate, 1,1,1,2-tetrachloroethane, and trichloroacetic acid are chemicals known to the State of California to cause cancer for purposes of Proposition 65. 1,1,1,2- tetrachloroethane is commonly used as a solvent and in the production of wood stains and varnishes. Trichloroacetic acid is commonly used in cosmetic treatments such as chemical peels and for the removal of tattoos and treatment of skin tags, warts and moles.

Effective September 27, 2013, chloramphenicol sodium succinate became a chemical known to the State of California to cause cancer for purposes of Proposition 65.

The effect of the listings is that anyone doing business in California must provide a clear and reasonable warning before they expose consumers to any of these chemicals. None of the five chemicals has an established safe harbor level for exposure, although Proposition 65 generally provides that there is no warning requirement if the exposures caused are so low as to create no significant risk of cancer.

Businesses have some breathing room to comply with the listings under Proposition 65’s safe harbor provision: No action can be taken by the Attorney General, district attorneys or private enforcers until 12 months after the listing of that chemical. Thus, businesses will have until September 13, 2014 (for chloral, chloral hydrate, 1,1,1,2-tetrachloroethane, and trichloroacetic acid) and September 27, 2014 (for chloramphenicol sodium succinate) before any alleged failure to comply is legally actionable.

Proposition 65 applies to everyone in the supply chain. Manufacturers, distributors, suppliers, retailers and other entities doing business in California should take advantage of the safe harbor period and review the products they sell to determine whether chloral, chloral hydrate, 1,1,1,2-tetrachloroethane, trichloroacetic acid or chloramphenicol sodium succinate is present in any of their products. If so, they should consider scientific testing to determine exposure levels. Possible action that can be taken to proactively handle the new listings include reformulation or providing a clear and reasonable warning to California consumers. Conkle, Kremer & Engel has substantial experience in helping businesses understand and comply with the requirements of Proposition 65 and other regulations to avoid exposure to liability, and to respond efficiently and effectively if a Notice of Violation is received.

12
OCT

Beauty Industry, Manufacturing, Proposition 65, Regulatory Compliance, Unfair Competition

Cancer, Chloral, Chloral Hydrate, Chloramphenicol Sodium Succinate, Distributors, Manufacturers, Notice of Violation, OEHHA, Prop 65, Proposition 65, Reproductive Harm, Retailers, Safe Harbor, Suppliers, Tattoo Removal, Tetrachlorethane, Trichloroacetic Acid, Varnishes, Wood Stains

CK&E Attorneys to be Featured Speakers at Upcoming Beauty Industry Presentation on Legal Regulatory Issues

Posted by: Conklelaw

Conkle, Kremer & Engel attorneys will be featured speakers at the Beauty Industry West presentation “Navigating in Challenging Regulatory Waters: Updates on California and Federal Compliance.” The presentation will take place on October 15, 2013 at the Crowne Plaza Hotel LAX in Los Angeles.

CK&E will be speaking on legal regulatory issues for personal care product companies doing business in California, including California Organic Products Act (COPA), Proposition 65 (California’s Safe Drinking Water and Toxic Enforcement Act) and California’s Green Chemistry Initiative.

Co-presenter Donald Frey is an industry veteran and a product development and innovation consultant of Frey Consulting. Mr. Frey will present on key regulatory issues from the business perspective, including how to effectively deal with regulators.

Beauty Industry West is a non-profit industry trade organization that educates and provides resources and a networking platform for companies and entrepreneurs who want to develop their own personal care and beauty brands.

Conkle, Kremer & Engel has decades of experience in the personal care industry. Our attorneys are pleased to participate in trade organizations like Beauty Industry West and to share their experience with members of the industry.

10
OCT

California Organic Products Act, Green Chemistry Initiative, Proposition 65, Safer Consumer Products Regulations, Unfair Competition

Beauty Industry, Beauty Industry West, BIW, COPA, personal care products, Prop 65

A Proposition 65 Reform Bill Becomes Law: California Health & Safety Code Section 25249.7 Amended by AB 227

Posted by: H. Kim Sim

On October 5, 2013, Governor Brown signed into law a bill that makes immediate changes to Proposition 65. The amendments, which passed the California Legislature last month, impose a number of restrictions on private enforcers seeking to enforce Prop 65 against businesses that allegedly fail to provide a warning as required by Prop 65. The bill that became law is Assembly Bill 227 (AB 227), introduced by Assemblymember Mike Gatto (Forty-Third District of California) in February 2013, and discussed in our March 13, 2013 blog post.

However, as AB 227 was enacted, only limited types of businesses are likely to benefit. The amendments are very narrow, covering only certain exposures to alcohol or food-related chemicals, vehicle exhaust and tobacco smoke. Thus, the only businesses that are likely to benefit from the amendments are bars, restaurants, parking garages, and those who own or operate premises where smoking is permitted.

In general, the amendments establish a new “safe harbor”: AB 227 prohibits a Prop 65 lawsuit from being filed by a private enforcer over an alleged failure to provide a warning concerning one of the specified exposures, if the business takes specified action within 14 days of receipt of the notice of violation. The targeted business can escape a Prop 65 action if, within 14 days, the business: (1) actually corrects the alleged violation; (2) agrees to pay a civil penalty of $500 per facility or premises within 30 days; and (3) submits a “Proof of Compliance” notifying the private enforcer that the violation has been corrected. If the business takes the so-called “safe harbor” action in response to the notice of violation alleging failure to warn about exposure to alcohol or food-related chemicals, vehicle exhaust or tobacco smoke, the private enforcer is precluded from filing a lawsuit or collect additional civil penalties or attorneys’ fees from the business.

These types of piecemeal amendments to Prop 65 may increase public demand and political pressure for additional reform. In May 2013, Governor Brown proposed sweeping, substantive reform to Prop 65, intended to end decades of “frivolous ‘shake-down’ lawsuits” by Prop 65 bounty hunters and their lawyers. But by September 2013, those efforts stalled as stakeholders involved in the reform effort were unable to reach the consensus needed to generate the two-thirds majority approval that is required for any amendment of Prop 65 in the Legislature.

Conkle, Kremer & Engel constantly tracks the latest developments in Prop 65 in order to provide expert guidance and counseling to clients. This latest amendment is a demonstration that businesses who receive a Prop 65 warning should immediately seek qualified legal counsel to help them avoid liability and unnecessary payments to Prop 65 claimants and their lawyers. In fact, businesses are well advised to consult qualified legal counsel to review their compliance with Prop 65 before an immediate response becomes necessary.

6
OCT

Beauty Industry, Food, Craft Beer and Nutrition, Manufacturing, Proposition 65, Regulatory Compliance, Technology, Unfair Competition

AB 227, Assembly Member Mike Gatto, Bars, Notice of Violation, Parking Garages, Prop 65, Prop 65 Reform, Proposition 65, Proposition 65 Reform, Restaurants, Safe Harbor, Smoking, UCL, Unfair Business Practices, Warning Letter

2012: A Bountiful Year for Prop 65 Plaintiffs and Their Lawyers

Posted by: H. Kim Sim

Proposition 65 requires that businesses warn about the presence of chemicals believed by the State of California to cause cancer or reproductive harm. Private citizens may file lawsuits “in the public interest” against businesses alleging a failure to provide the required warning. Such lawsuits are often filed by private law firms (sometimes called “bounty hunters”), in the names of repeat-plaintiffs like “Center for Environmental Health,” after sending Notices of Violation. The apparent primary purpose is to obtain quick cash settlements from bewildered, unsuspecting businesses.

2012 was a particularly “bountiful” year for Prop 65 private plaintiffs, according to data recently released by the California Attorney General’s Office. In 2012, private plaintiffs settled 397 cases. The settlements totaled nearly $20.5 million. When combined with the additional settlements by District Attorneys and the Attorney General’s Office, there were 437 Prop 65 settlements during 2012, totaling over $22.5 million. 2012 was the second-highest annual dollar total for Prop 65 settlements since 2000, and shows a clear upward trend in the settlements extracted from businesses that receive Prop 65 Notices of Violation.

It should surprise no one who studies Prop 65 issues that the bulk of the $22.5 million paid in Prop 65 settlements during 2012 went to the plaintiffs’ attorneys: Attorneys’ fees made up more than $14.5 million, or 71.34% of all private settlements. Private plaintiffs can also take 25% of any civil penalty assessed as a “bounty”. In 2012, the civil penalties retained by plaintiffs represented an additional $755,000 or 3.7% of all private settlements.

A lesser-known fact is that private plaintiffs and their attorneys can and do make even more money from Prop 65 settlements. A portion of each Prop. 65 settlement is supposed to go toward causes or activities that further the purpose of Prop 65, so Prop 65 allows parties to structure some of their civil penalty allocation as a “Payment in Lieu of Penalties” (aka “PILP”). Some Prop 65 plaintiffs have kept such PILP recoveries to support vaguely stated causes; some Prop 65 plaintiffs have even argued that funding more private litigation itself is activity that furthers the purpose of Prop 65, justifying PILP recoveries from settlements. In 2012, PILP money made up 13.88% of all private settlements. That means almost $3 million landed in the hands of private plaintiffs and their attorneys, in addition to the attorneys’ fees and civil penalty bounties they received.

Statewide, there are only a few active Prop 65 plaintiffs. Aggregated settlement data can be useful in achieving cost-effective resolutions of Prop 65 claims. CK&E routinely defends businesses who have received Prop 65 Notices of Violation. CK&E also works with businesses to develop compliance strategies to minimize the risk that they will be future targets of Prop 65 plaintiffs.

This Blog Post was Co-Authored by Jackson McNeill, Law Clerk, UCLA School of Law, Class of 2014

30
JUL

Beauty Industry, Food, Craft Beer and Nutrition, Manufacturing, Proposition 65, Regulatory Compliance, Sales, Technology, Unfair Competition

Attorneys, Attorneys' Fees, Lawyers, Notice of Violation, Payment in Lieu of Penalties, PILP, Settlements, Warning Letter

Proposition 65 Bounty Hunters Target Titanium Dioxide in Personal Care Products

Posted by: H. Kim Sim

Titanium dioxide (TiO2) is commonly used in personal care products. It can be found in cosmetics, skincare products, and sunscreens. Products that may contain titanium dioxide include nail acrylic powders, eye shadows, loose and pressed face powder, powder foundation, bronzers, blushes and spray-on sunscreens.

Titanium dioxide was added to the list of Proposition 65 chemicals in September 2011, and warning requirements took effect in September 2012. The addition of titanium dioxide (airborne, unbound particles of respirable size) to the Office of Environmental Health Hazard Assessment (OEHHA)’s list of chemicals subject to regulation under Proposition 65 has caused professional Prop 65 plaintiffs to send out a number of “Notices of Violation” to manufacturers and distributors in the personal care products industry. They do this because the law requires that a Notice of Violation be served before a private party may commence a Prop 65 lawsuit.

Prop 65 plaintiffs – motivated by the potential to recover civil penalties and attorney’s fees – have seized on the new listing to go after numerous companies, including those in the beauty products business, for failing to provide a warning that titanium dioxide is known to the State of California to cause cancer. Often, such Prop 65 Notices of Violation are motivated more by a desire for a quick settlement than for a long dispute.

Since its listing, titanium dioxide has been the subject of four Notice of Violations – two by the Center for Environmental Health, and two by the Public Interest Alliance. The Center for Environmental Health is a well known Prop 65 plaintiff represented by Mark N. Todzo of Lexington Law Group in San Francisco. Its Notices of Violation with respect to titanium dioxide have attacked manufacturers and distributors of spray-on sunscreens.

The Public Interest Alliance is new to the group of Prop 65 plaintiffs and is represented by Jeffrey M. Judd of Judd Law Group in San Francisco. It has only sent out two Notices of Violation since it appeared on the Prop 65 scene, but both have been over titanium dioxide, and the two Notices combined attack more than 100 companies.

Manufacturers and distributors of personal care products should carefully review the contents of products that may contain titanium dioxide. CK&E has helped clients with personal care products businesses understand and comply with the requirements of Prop 65, to avoid being one of those who receive a Notice of Violation. If a Notice of Violation is received, CK&E works aggressively to help clients resolve the claims as quickly and economically as possible, without being held captive to the bounty hunters’ demands.

14
JUL

Beauty Industry, Personal Care Products, Proposition 65

Lead in Baby Food? Failure to Warn Leads to Unusual Prop 65 Trial

Posted by: Eric S. Engel

Proposition 65 actions are notoriously expensive and difficult to defend. For that reason, most Prop 65 cases settle. But a rare case involving allegedly high levels of lead in baby food, packaged fruits and juices is in trial in the Alameda Superior Court.

In September 2011, the Environmental Law Foundation (one of a handful of organizations in California that files Prop 65 actions in the name of the public interest) brought a lawsuit against food companies Beech-Nut Nutrition, Dole, Gerber, Del Monte Foods, and many others. ELF claimed that the manufacturers made and sold baby and children’s food containing lead, without a warning as required by Prop 65, California’s Safe Drinking Water and Toxic Enforcement Act.

What is at stake in the Prop 65 action is whether baby food and children’s food such as carrot and potato baby food, grape juice and fruit cocktail must include a warning that the foods contain a chemical known to the state of California to cause cancer or reproductive harm. Naturally, the food manufacturers do not wish to be forced to warn potential consumers that their foods contain harmful chemicals.

The food companies’ defenses are being tried to Superior Court Judge Steven A. Brick. The food companies claim that their products contain only trace levels of lead that are below the level required for a Prop 65 warning. They also claim that the lead is “naturally occurring” in the foods and therefore no duty to warn is required under the “naturally occurring” exposure defense to Prop 65. Finally, the food companies have argued that Prop 65’s warning requirements are preempted by the Food, Drug and Cosmetic Act and the Nutrition Labeling and Education Act. They contend that the FDA has determined that the baby food and children’s food in question do not pose unacceptable risks to health, so a Prop 65 warning requirement would create a conflict between federal and state law.

This will be a closely-watched case, because the Court’s ruling on these defenses is likely to have a significant impact on the defenses available to businesses faced with Prop 65 actions in the future. Regardless of the outcome, CK&E’s lawyers will continue to work with businesses to help them develop a plan of compliance so that they can achieve their goal of minimizing the risk of being named as a defendant in a Prop 65 lawsuit. If a lawsuit is threatened or filed, CK&E’s lawyers apply can create and implement effective and cost-efficient defense strategies to minimize its impact.

25
APR

Food, Craft Beer and Nutrition, Proposition 65, Regulatory Compliance, Unfair Competition

Bounty Hunters, Notice of Violation, OEHHA, Warning Letter

Starting a Fire: "Tris" Listing Increases Risks of Prop 65 Claims

Posted by: H. Kim Sim

Tris / TDCPP is a common flame retardant additive used in the manufacture of polyurethane foam, resins, plastics, textile coatings and rubber. Tris / TDCPP is found in a wide variety of common products such as upholstered furniture and padding. California’s Office of Environmental Health Hazard Assessment (OEHHA) recently added the chemical Tris(1,3-dichloro-2-propyl) phosphate (chlorinated Tris or TDCPP) to its ever-growing list of chemicals “known to the State of California to cause cancer or reproductive toxicity.” As a result, Tris / TDCPP is now subject to Proposition 65, California’s Safe Drinking Water and Toxic Enforcement Act of 1986.

Prop 65 has a well-earned reputation as a “bounty hunter” statute, and is presently the subject of reform legislation, AB 227. This notorious “right to know” law does not ban any particular chemical from being used in products. In most cases it simply requires a generic warning label if a product contains chemicals found on the OEHHA’s Prop 65 list.

Because of the recent addition of Tris / TDCPP, products containing that chemical now must have a warning label in order to comply with Prop 65. Manufacturers and distributors who use outdated labeling and inadvertently fail to include the required warning are likely to be targeted by lawyers and claimants looking for violations on which they can capitalize. The penalties imposed by Prop 65 include fines as well as liability for the plaintiff’s attorney’s fees and costs.

Prospective Prop 65 plaintiffs are required to serve a “Notice of Violation” and wait at least 60 days before they can file a lawsuit. (California Health and Safety Code section 25249.7(d)) A review of the 159 Notices of Violation with respect to Tris / TDCPP served in the past 6 months reveals that just two law firms are actually behind the onslaught of Prop 65 notices regarding Tris / TDCPP:

The Chanler Group of Berkeley, California, through attorney Josh Voorhees and the firm’s “usual plaintiffs” (Peter Englander, Laurence Vinocur, Russell Brimer and John Moore) – 146 of the 159 Notices (92%).
Lexington Law Group of San Francisco, California, through attorney Mark N. Todzo and the firm’s plaintiff, Center for Environmental Health – 13 of the 159 Notices (8%).

The products identified in these notices have included foam-cushioned upholstered furniture, such as chairs, ottomans, stools and benches, foam-cushioned mattress toppers, back and seat cushions, car seats, and foam mats and pads for children and infants.

Manufacturers and distributors should promptly assess whether their products contain Tris / TDCPP. CK&E’s lawyers are experienced in helping clients take action to protect themselves from Prop 65 liability, and to help put out the fire if a Notice of Violation is delivered.

2
APR

Advertising and Labeling, Fashion, Manufacturing, Proposition 65, Regulatory Compliance

Lawyers, Notice of Violation, OEHHA, TDCPP, Tris, Warning Letter

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