Personal care product companies are riding the wave of strong consumer interest in “natural” products. However, going “natural” can come at a cost: In addition to concerns about drawing consumer claims that the term is being used in a potentially deceptive manner, there are other hidden risks to manufacturers, distributors and resellers of “natural” products. Perhaps surprisingly, a number of chemicals that are commonly found as a natural constituent of plants has been or is about to be classified as “chemicals known to the State of California to cause cancer” under California’s Proposition 65.
Pulegone is among the plant extracts found on the Prop 65 list. Pulegone is a natural constituent of various plants, including mint and other herbs, and of their essential oils. Pulegone was added to the Prop 65 list on April 18, 2014 as a chemical known to the state of California to cause cancer, and it became subject to enforcement actions a year later, on April 18, 2015. Prop 65 bounty hunter Mateel Environmental Justice Foundation wasted no time in sending out a 60-Day Notice of Violation to businesses whose products involve exposure to this chemical. It only took two days for the first Notice of Violation over exposure to pulegone to be served on businesses around the country. A Notice of Violation is often a pre-cursor to a lawsuit. The Notice of Violation claims consumer and occupational exposures to pulegone through use in products of pennyroyal oil.
The requirements of Proposition 65 are deceptively simple – provide a clear and reasonable warning if the use of the product results in an exposure to one or more of the 800+ chemicals on the Prop 65 list of known carcinogens and reproductive toxins. But the penalties, fees and damage to business reputation for failing to comply can be severe: Under Proposition 65, the civil penalties for failing to provide a clear and reasonable warning prior to exposure can reach up to $2,500 per violation per day, in addition to payment of an enterprising plaintiff’s attorneys’ fees. Wherever they are located, manufacturers, distributors and retailers can be liable for Prop 65 violations, and the sale of even one product that may cause an exposure to a Prop 65 chemical is subject to zealous pursuit by Prop 65 plaintiffs. Businesses are well advised to consult with counsel who are familiar with Prop 65 concerns and can help them proactively get ahead of the Prop 65 curve or successfully resolve claims in the event a Notice of Violation is received.