Davia

BACKGROUND

Proposition 65 requires companies that expose consumers to chemicals known to cause cancer, birth defects, or reproductive harm to provide a reasonable and clear warning regarding their products. (Health & Saf. Code, § 25249.6.) In February 2017, Davia sent Be Wicked a Proposition 65 prelitigation notice,1 alleging Be Wicked manufactured, distributed, and sold vinyl packaging and costume storage cases that exposed users to high concentrations of carcinogens di(2-ethylhexyl)phthalate (DEHP) and/or di(isononyl)phthalate (DINP) without any warning of the chemical content or exposure risk. (Cal. Code Regs., tit. 27, § 27001, subd. (b).) As stated in the notice, Davia intended to file a lawsuit unless Be Wicked entered into a binding written agreement to recall products already sold or ensure the requisite health hazard warnings are provided, to provide clear reasonable warnings for future products, and to pay an appropriate civil penalty. (Health & Saf. Code, § 25249.7, subd. (b).) Shortly after receiving the notice, Be Wicked applied warnings to its products and its website. A few months later, Davia offered Be Wicked the option of joining an existing group settlement…