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 suits will not change and claims citizen enforcement of Prop 65 is beneficial for the safety and wellbeing of the state.
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 then some.
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:
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.
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.
From how the food is made to how the food is packaged, bounty hunters keep 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:
The cosmetics industry is permanently under the microscope of 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.
Violations that refer to phthalates have been a majority source of notice violations since 2012.
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 target 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.
Here are a few risk mitigation strategies that companies can implement as a line of defense against Prop 65 bounty hunters:
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.
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.
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.
Since the amendment back in August of 2018, the California Proposition 65 regulation has seen language updates, labeling updates, special labeling situations played out in court, and more. Tune in on May 2nd, 2019 @ 11am PDT for the webinar: California Prop 65 in 2019.