Environment

Listed under California’s Proposition 65 (“Prop. 65”) over 30 years ago, aflatoxins are re-entering the spotlight in a wave of recent Prop. 65 notices of violation (“NOVs”) targeting food products.

Prop. 65, officially called the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses with 10 or more employees to provide a “clear and reasonable” warning before exposing individuals in California to any listed chemical that may cause cancer or reproductive harm. Aflatoxins were listed under Prop. 65 in 1988 as a chemical that may cause cancer.

Aflatoxins are produced by naturally occurring fungi that are found on agricultural products. The recent Prop. 65 NOVs for aflatoxins have primarily targeted food products containing figs, dates, nuts, peanuts, and corn. However, notices for other food products have been issued as well, including for powdered spices. In the last month, forty-eight new NOVs have been issued for alleged failure to warn for exposure to aflatoxins in food products.

There is currently no established safe harbor level for aflatoxins under Prop. 65. Without a defined level, any exposure could potentially require a warning unless an exposure assessment shows it is below a harmful threshold or some other Prop. 65 defense applies.

Food producers and retailers are well-advised to consult with experienced Prop. 65 counsel before, and after, receiving a Prop. 65 NOV. We are closely following these issues and have significant experience representing clients in Prop. 65 matters.