Defending Prop 65 Lawsuits: What Food Businesses Need to Know

Defending Prop 65 lawsuits has become a high-stakes reality for many food businesses that sell into California. Under Proposition 65—the state’s Safe Drinking Water and Toxic Enforcement Act of 1986—companies must provide warnings when their products expose consumers to chemicals known to cause cancer, birth defects, or other reproductive harm. The law applies not only to California-based businesses but also to any company with products reaching the California market.

The Office of Environmental Health Hazard Assessment (OEHHA) maintains the official list of chemicals regulated under Prop 65. This list currently includes over 900 substances, and the state updates it at least once annually. Food companies often encounter Prop 65 claims for chemicals such as:

• Acrylamide, found in baked or fried starchy foods
• Lead, a heavy metal present in some supplements and spices
• Cadmium, detected in chocolate and leafy greens
• Arsenic, common in rice and rice-based snacks
• Furfuryl alcohol, used in flavorings and roasting processes

Defending Prop 65 lawsuits can become expensive and time-consuming. The statute authorizes penalties of up to $2,500 per day, per violation. These fines accumulate quickly—especially when a company sells the same product over several years without proper warnings. Beyond civil penalties, businesses may also face mandatory product reformulation or relabeling, court orders restricting further sales, plaintiff’s attorney’s fees and expert costs, and reputational harm. Since Proposition 65 allows private individuals and law firms to sue, enforcement isn’t limited to state regulators—these “bounty hunter” lawsuits create ongoing litigation risk for food businesses.

California courts have seen hundreds of Proposition 65 lawsuits involving food products. A few notable examples:

• Acrylamide in Chips and Crackers. Several manufacturers settled claims that acrylamide forms during high-temperature cooking, with some agreeing to add warnings or change recipes.
• Lead in Supplements and Protein Powders. In 2013, supplement makers paid over $1 million to resolve claims related to lead content above safe limits, and agreed to ongoing testing and labeling changes.
• Cadmium in Chocolate Products. Chocolate brands came under scrutiny for cadmium levels in dark chocolate; several reached settlements requiring public disclosure and mitigation.
• Arsenic in Baby Foods. Baby-food makers have faced claims over inorganic arsenic in rice-based snacks, some settling by agreeing to reduce contamination and provide consumer warnings.

Each case underscores the risk: even trace amounts of naturally occurring substances can trigger litigation if warnings are missing.

If your business sells into California, you are subject to Prop 65—even if you operate elsewhere. Because of the law’s strict-liability standard and private-enforcement structure, businesses must take proactive steps to manage their exposure. By understanding the statute, testing your products, and evaluating chemical risks, you can reduce the chances of a costly lawsuit. When litigation does arise, a strong legal defense and experienced litigation counsel become essential.

This page anchors a four-part cluster. Continue with statutory defenses to Prop 65 claims, complying with Prop 65 labeling requirements, defense strategies for larger companies, and settling cases for smaller manufacturers.

Last reviewed: June 2026.

Jason Foscolo Founder of The Food Law Firm — fractional general counsel for food & beverage businesses nationwide.

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