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OVERVIEW

The number of Proposition 65 pre-suit notices and lawsuits against the food industry has skyrocketed since 2012.

Food and beverage companies face an increasing risk that they will become the target of California’s Proposition 65 litigation. Virtually any food company that conducts a business in California—restaurants, manufacturers, vendors, etc.—is at risk.

Proposition 65 pre-litigation notices impacting the food and beverage industry have increased steadily over the last eight years. Plaintiffs served nearly 500 pre-litigation notices regarding food and beverage products in 2019. The chart below shows the dramatic uptick in Proposition 65 notices.*

FOOD AND BEVERAGE PROPOSITION 65 ACTIONS:
PROPOSITION 65 NOTICES

2020 Proposition 65 Chart

*Data compiled by Perkins Coie based on a review of Proposition Notices filed with the California Office of Attorney General

Notably, there has been a significant spike in the number of pre-litigation notices involving acrylamide, lead, and cadmium, which now account for the vast majority of the pre-litigation notices involving food and beverage products. Among the key food targets for acrylamide notices are potato-based fried and baked snack foods such as chips, crackers, cookies, pretzels, and roasted nuts. Private enforcers have also stepped up pre-litigation notices targeted at dry spices, dried or roasted seaweed snacks, green juices, and protein supplements for containing trace amounts of lead and/or cadmium. Another noteworthy trend is the increase in the number of pre-litigation notices involving dietary supplements. The number of filings involving dietary supplements doubled from 2017 to 2018 and kept on pace in 2019 with approximately 120 pre-litigation notices. Additional information regarding Proposition 65 trends can be found in our Food Litigation 2019 Year in Review.

Perkins Coie’s food, supplement, and consumer packaged goods litigation team helps many food and beverage industry clients manage risks in this constantly changing area. We track the regulatory developments as changes arise. We stay in regular contact with key industry experts to understand emerging science and potential defenses. In addition, we monitor and track Proposition 65 filings daily to stay abreast of emerging trends.

Our attorneys have defended all types of food products, including chips and snacks, coffees, cacao products, baked goods, seafood products, baking mixes, bars, and cereals. We have focused on defending claims for virtually all toxins that are allegedly found in food products, including arsenic, cadmium, acrylamide, BPA, and lead.

Perkins Coie has the team and resources to protect clients’ companies and continually strives to achieve our clients’ goals, whether through an early negotiated settlement or in extended litigation challenging the claims on the merits.

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