Perkins Coie attorneys, Patrick Thompson, Steven Hwang, Kristine Kruger and Cassandra Abernathy were quoted in “‘Significant Increase” in Prop 65 Notices Over Lead, Acrylamide, and Cadmium in 2017/18, Says Perkins Coie,” an article in FoodNavigator-USA.com, regarding the increase in Prop 65 notices.

There has been a significant increase in food and beverage Prop 65 actions in the past five years, with particularly strong growth in notices relating to lead, acrylamide and cadmium, according to new data compiled by attorneys at Perkins Coie.

Speaking at a food litigation webinar hosted by the law firm last week, Steve K. Hwang said Prop 65 notices on acrylamide had tripled between 2016 and 2017 as more plaintiffs alleged violations of the law, which requires firms selling products in California to provide warnings if their products expose consumers to hundreds of chemicals linked to cancer or reproductive toxicity.

As for lead, the subject of 243 Prop 65 notices in 2017, 2018 looks set to be a bumper year, with 217 notices in the first eight months of this year alone. Prop 65 notices for cadmium – the subject of 67 notices in 2017 – are also at record levels, with 75 notices filed in Jan-August 2018, said Steven.

While some Prop 65 cases have real merit, many appear to be blatant revenue-generating exercises for the plaintiffs’ lawyers, Kristine Kruger, told FoodNavigator-USA earlier this month: “Prop 65 remains very controversial as it’s generated so many bounty hunter lawsuits. Last year 76% of settlement money went to attorneys’ fees, so there’s a huge incentive for attorneys to get into this business.”

If you look at overall food litigation trends, said Perkins Coie partner Patrick Thompson, the number of filings has been fairly steady over the past four years, with California remaining the destination of choice for enterprising plaintiff’s attorneys to file, although New York is gaining traction.

The FDA is also considering a standard symbol or icon to denote ‘healthy’ on food labels, looking to re-assess standards of identity for some food products (tackling the thorny plant ‘milk’ debate), and considering petitions asking it to allow more consumer-friendly names for certain substances on ingredient declarations (vitamin B6 instead of pyridoxine, or potassium salt instead of potassium chloride), Cassandra Abernathy said