Target Infant Formula Subject of Prop 65 Litigation

A law firm representing an organization that monitors water quality has notified mega-retailer Target that its in violation of a California law requiring companies to provide consumers with a “clear and reasonable warning” for products containing chemicals known to cause cancer or reproductive toxicity, including infant formula.

In its October letter to Target’s president and CEO, as well as the California Attorney’s Office and district and city attorneys across the state, lawyers for the Community Science Institute state that a Target infant formula — Up & Up Toddler Beginnings Infant Formula with Iron Milk Based Powder — contains lead. Up & Up is Target’s private label brand and the letter contends that the product is subject to the terms of California’s Proposition 65 or the “right-to-know statute.”

Prop 65 requires all products containing any one of more than 800 naturally occurring and synthetic chemicals known to cause cancer or reproductive toxicity to be labeled with a “clear and reasonable warning to California consumers about the possibility of exposure to carcinogenic compounds.”

California enacted the Safe Drinking Water and Toxic Enforcement Act in 1986, though it continues to be more commonly referred to by its original name, Proposition 65, or Prop 65.

According to its website, the mission of the Ithaca, New York-based Community Science Institute, a project of the non-profit Social and Environmental Entrepreneurs, is to “unite consumers and industrial neighbors to reform government and industry practices for a toxic free future.”

Lawyers for the Community Science Institute accuse the company of “knowingly and intentionally” exposing California consumers to lead without providing a Proposition 65 warning on Target infant formula.

“The Violators have manufactured, marketed, distributed, and/or sold the listed products, which have exposed and continue to expose numerous individuals within California to the identified chemical, lead,” the letter alleges.

The law firm informed Target of its intent to file a citizen enforcement action 60 days after the retailer is notified of the alleged violation unless Target agrees to three conditions:

• Reformulate the infant formula;
• Pay an appropriate civil penalty; and
• “[P]rovide clear and reasonable” Prop 65-compliant warnings to all Californians who purchased the Target infant formula in the last three years.

California legislators enacted Prop 65 to help Californians make informed decisions when purchasing products containing chemicals known to cause cancer, birth defects, or other reproductive harm.

The California Office of Environmental Health Hazard Assessment’s website contains a comprehensive list of the 800+ chemicals requiring warning labels but the onus is on businesses to decide whether to include a warning label.

Manufacturers, however, are not required to provide the state Office of Environmental Health Hazard Assessment with any information about the products, leaving it up to businesses to make the call based on their knowledge of what chemicals are in the products they sell.

Prop 65 has opened a litigation floodgate. The San Jose Mercury-News reported that in 2015, businesses paid more than $26 million to settle Prop 65 lawsuits.

Bradley Grombacher is currently investigating companies who have violated Prop 65 by including hazardous chemicals in their products.

Note: Bradley/Grombacher is not representing the plaintiff in this lawsuit.