Private plaintiff Files Most Prop 65 Complaints Against Supplements

SAN FRANCISCOAlmost 250, or one out of every seven, Proposition 65 notices filed in the last two years have been addressed to marketers of dietary supplements, according to Michael McGuffin, president, American Herbal Products Association (AHPA) at the Prop 65 Clearinghouse's Proposition 65 Annual Conference at the City Club of San Francisco.

Almost all of these notices have been filed by a private plaintiff, the Environmental Research Center, he said, and have alleged the presence of lead above 0.5 mcg/day, the level at which a reproductive toxin warning is required. Only five of these cases have been settled to date with an average cost of over $66,000 each, he added.

Consumer goods sold in California are, with certain exceptions, subject to Prop. 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, which places specific labeling requirements on products that contain chemicals considered by the state as carcinogens or reproductive toxicants. Failure to provide such warnings can result in action by the California attorney general or by "any person in the public interest."

On Dec. 6, McGuffin will again speak on Prop. 65 issues during a dicentra Inc. free webinar that is part of the company's regulatory update series. In that webinar, McGuffin will provide a basic background on Prop. 65 and how it affects supplement companies that do business in California; offer an analysis of Prop. 65 complaints, lawsuits and settlements against supplement companies; and present the options for reducing the risk of encountering a Prop. 65 complaint.

Through a joint project between AHPA and its Prop. 65 counsel, Trent Norris of Arnold & Porter, the trade organization offers more Prop 65 information to its members. Additionally, AHPA has worked with AHPA member Grifcon Enterprises and ThinkRisk to develop ThinkRisk Vitamin & Supplement Program, insurance that covers claims brought under Proposition 65 up to a specific sublimit (typically $100,000).