Prop 65 Warning

The Center for Environmental Health (CEH) filed a lawsuit last week against four companies alleged to have sold shampoo containing cocamide DEA without first providing consumers with a health hazard warning, in violation of Proposition 65.  Cocamide DEA is a chemical known to the state of California to cause cancer. Proposition 65, California’s unique right-to-know law, requires companies selling products containing such toxic chemicals to first provide consumers with a health hazard warning.  The companies named in the suit are Walgreens, Lake Consumer Products, Vogue International and Ultimark Products.

Cocamide DEA, or coconut oil diethanolamine condensate, is a foam stabilizer, emulsifier and viscosity builder in cosmetic products, including shampoos and liquid soaps.  Cocamide DEA was designated by the State of California as a chemical known to cause cancer on June 22, 2012, and companies whose products are sold in California were given one year to comply with the clear and reasonable warning requirement of Proposition 65.  After the one-year grace period expired on June 22, 2013, CEH investigated and tested shampoos and liquid soap products and found that nearly a hundred of them still contained cocamide DEA and were sold without warnings.

CEH also released a list of tested products that allegedly contain cocamide DEA.

The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years.

The Environmental Research Center (ERC) filed a suit against Clif Bar & Company, alleging unwarned exposures to lead in violation of Proposition 65.  ERC alleges that several of Clif Bar’s products contain lead, a chemical known to the State of California to cause reproductive harm, and that California citizens have been exposed without receiving a health hazard warning.

ERC issued 60-Day Notices of Violation of Proposition 65 to Clif Bar on November 23, 2010 and August 5, 2011.  ERC filed the complaint on July 18, 2013 in Superior Court of California, County of San Francisco.  The products named in the lawsuit include several flavors of Clif’s high-protein Builder’s bars, one of Clif’s LUNA bars, and two flavors of Clif’s Shot Bloks energy chews.  ERC seeks injunctive relief, or an order preventing Clif Bar from the continued manufacturing, packaging, distributing, marketing, and/or selling the products in California without first providing clear and reasonable warnings that the products expose consumers to lead.

Clif Bar & Company is based in Berkeley, Calif. and manufactures and sells organic energy and nutrition foods and drinks nationwide.  The company also owns and operates the Clif Family Winery and Farm and the Clif Bar Family Foundation, to promote nature conservation and sustainable agriculture.

The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years. 

The Chanler Group has received certification, required by the settlement agreement with TCG client Russell Brimer, that Wolters Kluwer’s vinyl and PVC notebooks offered for sale in California have been reformulated to contain less than 0.1% of DEHP.  As a result, the final civil penalty of $15,000, which Wolters Kluwer agreed to in the settlement, will be waived.  The penalty waiver provision of the settlement provided an incentive for Wolters Kluwer to promptly reformulate their products to be free of DEHP.  DEHP is a toxic phthalate chemical known to the State of California to cause reproductive harm.

Wolters Kluwer is a multinational company providing information, software, and services to the legal, tax, finance, and health industries, with over 19,000 employees serving customers in 150 countries.  Russell Brimer found that Wolters Kluwer notebooks contained DEHP but did not provide the required health hazard warning, and served Wolters Kluwer with a 60-Day Notice of Violation on August 16, 2012.  Wolters Kluwer entered into a settlement agreement on March 7, 2013, for a total of $57,000 in penalties and attorneys’ fees, $15,000 of which would be waived if a certification of reformulation were provided by August 1, 2013.

The Chanler Group frequently includes such “reformulation incentives” in its settlements as part of the firm’s work in effectuating change for a cleaner environment and safer consumer products.

The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years.

Though Coca-Cola has reformulated its products both within and without California to no longer contain the cancer-causing chemical 4-methylimidazole (4-MEI), Pepsi products purchased outside of California still contain 4-MEI, the Center for Environmental Health (CEH) announced earlier this month.

Last March, both Coca-Cola and PepsiCo stated they would change their caramel coloring in products nationwide as a result of Proposition 65, which requires companies offering products for sale in California containing chemicals known to cause cancer or reproductive harm to first provide consumers with a health hazard warning.  

Earlier this year, CEH commissioned an independent lab to conduct 4-MEI testing on Coke and Pepsi products.  Coke and Pepsi purchased in California were shown to have been reformulated to contain little to no 4-MEI, and CEH asked ten supporters from across the country to send Coke and Pepsi products purchased in their areas.  According to CEH, lab tests found little or no 4-MEI in nine out of ten Coke products, but showed higher levels of 4-MEI in all ten Pepsi products tested: 4 to 8 times higher than California safety levels.

Industrial production of caramel coloring creates 4-MEI as a by-product, but processing changes can reduce or eliminate production of the chemical without altering the coloring.  California designated 4-MEI as known to the State of California to cause cancer after the National Toxicology Program found “clear evidence” of carcinogenicity of the chemical in animal studies.

Pepsi has responded to CEH to say: “Our caramel coloring suppliers have been working on modifying the manufacturing process to reduce the amount of 4-MEI,” and that the rest of the U.S. will be completed by February 2014.

The Chanler Group’s clients have also filed lawsuits against food manufacturers for selling products containing 4-MEI without the required health hazard warnings, and recently settled with Farmer Bros.

The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years.