Natural Products are Not Immune from Prop 65 – Beta Myrcene is a Listed Chemical

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Natural Products are Not Immune from Prop 65 – Beta Myrcene is a Listed Chemical

The Conkle firm recently wrote about personal care product ingredients that are found in nature that are nonetheless among those that have been identified by the state of California to be “chemicals known to the State of California to cause cancer” under California’s Proposition 65.

On March 27, 2015, the Office of Environmental Health Hazard Assessment (“OEHHA”) added beta-myrcene (CAS No. 123-35-3) as a chemical known to cause cancer under Proposition 65.   This means that enforcement actions may commence starting March 27, 2016. Beta-myrcene is a natural constituent of food plants, such as hop, bay, verbena, lemongrass, citrus, pomegranate, and carrot, and of their juices and essential oils. Beta-myrcene is used as a fragrance in cosmetics and soaps, many of which are positioned  as “natural” products.  Other ingredients that are popularly used in “natural” beauty products are joining the list – check back for our additional blog posts on those in the near future.

In addition to such ingredients, businesses should be careful not to overlook diethanolamine (DEA), coconut oil diethanolamine (cocamide DEA) and benozphenone – three chemicals that became subject to enforcement action in June 2013 and which remain a favorite of Prop 65 plaintiffs. Thousands of companies, with particular focus on beauty industry manufacturers, distributors and retailers have been hit with Notices of Violation over these chemicals.

Beauty companies should review their current formulations to determine whether any of their products contain an ingredient that is or may be on the Proposition 65 list, or whether any of their products contain an ingredient that may cause an exposure to a Proposition 65 chemical. Companies should work closely with their manufacturer or supplier, and have strong contracts to insulate them from Proposition 65 liabilities. Companies should also consider being pro-active by reformulating chemicals out of their products early on, if possible.  If a Notice of Violation is received, contact counsel with experience in successfully resolving Prop 65 claims.

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Beauty Industry, California Trade Regulations, Food, Craft Beer and Nutrition, Manufacturing, Personal Care Products, Proposition 65, Regulatory Compliance

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Prop 65 Notices and Lawsuits Target Cocamide DEA

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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.

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

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