The California Prop 65 regulation has a unique attribute that is constantly debated and lobbied against:
Any individual acting in the public interest may enforce Proposition 65 by filing a lawsuit against a business alleged to be in violation of this law.
The private citizen litigation opens the gate for anyone to file a lawsuit against a company that [they feel] has violated the law. For context, there were 249 violation notices handed out to companies in January 2019.
The OEHHA made it clear that their standing on privatized law suites will not change and claims citizen enforcement of Prop 65 is beneficial for the safety and wellbeing of the state.
Why does private citizen litigation get backlash?
Bounty hunters. From an enterprise perspective, bounty hunters are traditional private citizens’ “ugly cousin”. Bounty hunters target off-the-shelf products made and distributed by large companies who sell in California. In many cases, bounty hunters issue 60 day notices and walk away with an out of court settlement that covers their costs, and some.
What industries do bounty hunters target?
Bounty hunters generally look to focus their efforts towards high revenue companies who sell high volumes of products in the state of California. That being said, Here are 7 industries that bounty hunters have historically targeted:
1. Alcoholic Beverages
As a result of the 2018 amendment to Prop 65, modifications to warning requirements left many alcoholic beverage manufacturers scrambling to implement proper labeling requirements.
2. Big Box Store Retail
Big box retailers have always been a target for bounty hunters. A simple swipe test of a low-cost product can yield enough evidence to issue a violation.
3. Food products
From how the food is made to how the food is packaged, bounty hunters have a close eye on how food products are delivered to customers. The evolution in meal delivery services created a channel for violations, as well.
The legalization of marijuana creates a myriad of scenarios that bounty hunters analyze including; the manufacturing process including additions of pesticide chemicals on the Prop 65 list, On-package labeling of products, Environmental exposure of chemicals in manufacturing, packaging, and consuming situations.
5. Skin Lightening Creams (Mercury)
The cosmetics industry is under a constant microscope from bounty hunters. Recently, the Non-Profit group As You Sow, filed a violation notice with intent to sue Amazon for selling skin lightening products with high levels of mercury with no sign of a California Prop 65 warning.
6. Plastics Containing Phthalates
Violations that refer to Phthalates have been a majority source of notice violations since 2012.
7. Brass Containing Lead
All brass door handles and staircase handrails contain lead – many of these areas go without proper warning.
***Effectively, bounty hunters create a win-win situation for themselves. They targeting companies with violations that can exceed millions of dollars where it’s in the companies’ best interests to settle out of court and move on.
How can you protect yourself from bounty hunters?
Here’s a few risk mitigation strategies that companies can implement as a line of defense against Prop 65 bounty hunters:
1. Know your products
The ultimate defense to any Prop 65 violation is to know what’s in your products. Collecting data in the form of a BOM or FMD can pose extreme challenges, but there are new methods of data collection evolving that help you better understand your products.
2. Prop 65 Safe Harbor Levels
Safe harbor levels are volumes of chemicals that the OEHHA has deemed acceptable to be present in a product without a label. Safe harbor levels can be your saving grace when faced with a violation notice that puts huge volumes of inventory at risk.
3. Centralize Your Product Data
In reference to point 1 – without proper data management, your product data might not make a lot of sense and/or not trigger red flags. Centralizing your product data, making it easily accessible and having real time compliance checking applications increases your chances of withstanding a bounty hunter’s attack.