PRODUCT IDENTIFICATION

PRODUCT IDENTIFICATION
In Consumer Protection Cases

March 2025

We encountered a defense counsel who mistook a Proposition 65 case for a personal injury case and attempted to lead the court into multiple product identification hearings, asking the court to dismiss the claim based on his finding that a "day code" attached by his client-product manufacturer to the product packaging, was washed out and not readable.

We filed a brief with the court, explaining why any manufacturer's identificatior, such as "day code," is irrelevant for a statutory compliance and consumer protection cases, such as Proposition 65, with arguments below; the court vacated the hearing and the discovery into the product identification issue.

Product identification issue is irrelevant in consumer protection case, such as California's Proposition 65 because the law intends to protect future consumers and not punish for any particular injury. The focus is on exposure, not on injury to a particular consumer from a particular item. The court in Environmental Health Advocates, Inc. v. Sream Inc. (2022) 83 Cal.App.5th 721, 731-732 [299 Cal.Rptr.3d 736].) cites Lee v. Amazon.com, Inc. (2022) 76 Cal.App.5th 200, 247–248 (“Lee”): “Proposition 65 “is not primarily about punishment for harm that has been inflicted; it is about protection from harmful chemicals, the ability to make informed choices about coming into contact with such chemicals, and deterrence of conduct that undermines these [Proposition 65’s] purposes.”

Further, the court writes; “The law is designed to inform consumers about potential exposures to harmful chemicals, allowing them to make informed choices, rather than to ensure product consistency.” (Lee, at 200.) (Emphasis added.)

The regulation specifically says that “For products, the UPC number, SKU number, model or design number or stock number or other more specific identification of products” is NOT required, 27 CCR § 25903(b)(4); OEHHA’s Final Statement of Reasons for adopting the language in Section 129031 (“FSOR”) explains: “This is not to suggest that a citizen must describe the product by some obscure product identification number;” the language “of the nature” was intended to “assure that the regulation is not interpreted to require identification of the precise items, e.g. the individual cans of paint;” the language meant to identify a category of products ”without requiring an unnecessarily particular identification of the product,” so as to become a “trap for the unwary” (such as identification of individual cans of spray paint or individual model or design numbers). (Emphasis added) FSOR, p. 14.

Regulations Do Not Require Specific Identification of the Products by Day Code, UPC, SKU, Model or Design Number. Identification Number Does Not Limit the Scope Of the Product Description.

The regulation governing the description of the product in a 60 Day Notice of Violation of Proposition 65 provide:

A notice is not required to contain the following information:

(A) The specific retail outlet or time or date at which any product allegedly violating the Act was purchased;

(B) The level of exposure to the chemical in question;

(D) For products, the UPC number, SKU number, model or design number or stock number or other more specific identification of products;

(E) For geographic areas, the lot, block, or other legal description of the property in question. (Emphasis added)

27 CCR § 25903(b)(4).

Legislative History of the Regulation Allows for Broader Product Category Descriptions

FSOR gives a clear explanation of the distinction between adequate and inadequate descriptions of products. It specifically explains that product descriptions such as “spray paints” or “ceramic dishes” are sufficient; but, language such as “various aerosol, paint, adhesive and/or automotive products, including but not limited to…” or “various chemical products, sold in bulk or as finished products” are inadequate because the language is “…so general that they would appear to encompass virtually any products that might be made by a certain companies.” FSOR, 22 Cal. Code of Regulations Division 2 (former) Section 12903, Paragraph (b)(2) Description of Violation, p. 10. (FSOR). However:

This is not to suggest that a citizen must describe the product by some obscure product identification number, or describe spray paints by every shade. Clearly it would be sufficient simply to say ‘aerosol spray paint,’ ‘car wax’ or ‘paint thinner.’ Such a description would at least identify the category of products that will be the subject of the action, and would enable the public agency to focus the investigation.” (Emphasis added).

Id. at 10.

FSOR states “that the regulation is not interpreted to require identification of the precise items, e.g. the individual cans of paint.”

Further, where 27 CCR §25903(b)(2)(D) provides the “specific type of consumer product” must have “sufficient specificity to inform the recipients of the nature of the items allegedly sold in violation of the law.” (Emphasis added).

The Final Statement of Reasons provides the language “of the nature” was intended to “assure that the regulation is not interpreted to require identification of the precise items, e.g. the individual cans of paint.” (Emphasis added) FSOR, p. 14. The “of the nature” language was left in to require a “somewhat more particular description, e.g., “aerosol spray paint.” “typewriter correction fluid,” or “paint stripper,” without requiring an unnecessarily particular identification of the product.” (Emphasis added) Id..

In addition, in adopting 27 CCR § 25903(b)(4)(D), the Final Statement of Reasons notes that the regulation is not intended to require “highly technical information” or so much specificity as “to turn the notice requirement into a trap for the unwary.” (Emphasis added) FSOR, p. 16. In fact, OEHHA rejected a number of commenters’ suggestion to require “more specific information concerning products, such SKU numbers, UPC codes, and copies of labels.” Id.. OEHHA explained:

The agency has not adopted this suggestion. This type of information is not necessary to notify the alleged violator or public prosecutors of “the violation which is the subject of the action,” which is all that is required by the statute. More general identification of the type of product will give all recipients sufficient information concerning the basic nature of the claim, and those products to which it applies. (Emphasis added).

Id.

Regulation Allows Broder Product Description In Order to Cover “Slightly Different Models”

OEHHA also rejected a suggestion that subsection § 25903(b)(4) be revised to include a requirement that sufficient specificity in the notice "should allow the recipient to understand the particular model or variation which is the subject of the notification." The Final Statement of Reasons explains:

While the model or variation may be material in some cases, in many it will not be, and slightly different models should not be excluded due to a failure to reference them in the notice. Moreover, in many instances it will not be possible for the noticing party to be aware of slightly different models or formulae used by a manufacturer. (Emphasis added).

Id., at 17.

Regulation Allows Broder Product Description Without Requiring a Plaintiff to Investigate Exhaustively

Further, the language of 27 CCR §25903(b)(2)(D) which states there should be sufficient specificity to allow the pre-suit notice recipient to “distinguish those products or services from others sold or offered by the alleged violator for which no violation is alleged” was not meant to require the noticing party:

... to investigate the alleged violator’s product lines exhaustively in order to distinguish the listed category of products or services from the company’s other product or services that may be in compliance with Proposition 65. The language in question, … would not create such investigative burden, it simply would require the noticing party to limit the terms of its notice to those products about which it has information to justify alleging a violation.” (emphasis added) FSOR, p. 14.

Thus, the regulations provide that there must be some balance between a product description that is “so general that they would appear to encompass virtually any products that might be made by a certain companies” (such as “various aerosol, paint, adhesive and/or automotive adhesive and/or automotive products, including but not limited to…” and not requiring an “unnecessarily particular identification of the product” so as to become a “trap for the unwary” (such as identification of individual cans of spray paint or individual model or design numbers). If anything, the language of the regulations and Final Statement of Reasons provide that a broader product description is adequate.

Case Law Supports Allowing Broader Product Description

In addition, case law has found that the brand name is not even required for a sufficient pre-suit notice. In Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2007) 150 Cal. App. 4th 953 (“Kintetsu”), the plaintiff won on the issue of sufficiency of the pre-suit notice as to consumer product exposures. There, the court did not require that a pre-suit notice had to identify the specific brands of cigars at issue and held that the identification of “cigars” was sufficient. Kintetsu, 150 Cal. App. 4th at 970. Further, another respondent argued that the plaintiff’s notice had to “specifically identify the brands of cigars” because the respondents could not differentiate from certain cigars they may have been covered for in a prior consent judgment. Id. at 970. The court found this unpersuasive, and stated, “CAG is not required to anticipate every possible defense in its notice. Section 12903, subdivision (b)(4)(D) expressly provides that ‘for products, the UPC number, SKU number, model or design number or stock number or other more specific identification of products’ is not required.” (emphasis added) Id. at 971.

Evidence of Every Product Alleged to Be in Violation is Not Required

The court in Lee identified the issue: “whether the test results for one unit of a product could be sufficient to determine whether mercury was present in other units—not whether any specific amount was present, just whether it was present at all.”

In Lee, after a bench trial in January 2019, the trial court ruled in favor of Amazon, finding the company immune from liability under section 230 of the federal CDA (47 U.S.C. § 230). The court also found that while Amazon could have a duty to warn under Proposition 65 for third party sales of the products at issue, Lee failed to prove each element of his claim under Proposition 65—specifically, that Lee did not prove each of the products at issue contained mercury, that test results finding mercury in a unit of the products at issue should be generalized to other units of that product or similar products. (Emphasis added.)

The court reversed, stating: “Prop. 65 (approved 1986) imposes a duty to warn based on presence of a listed chemical in a product, without requiring uniformity across individual units in the precise amount of the chemical in a given unit.” (Ibid. at 200.) (Emphasis added.)

Further, the Lee court opined:

Dr. Sheehan's testimony is also difficult to reconcile with the practice of governmental entities responsible for regulating harmful consumer products. A CDPH employee who helped write the January 2014 news release warning against use of certain skin-lightening creams testified that the sample of Monsepa express peeling cream that was the basis for the alert did not have batch or lot numbers or other such identifying information and the alert was issued “for any and all products that have this appearance in name.” Dr. Solomon testified that “it's something regulatory agencies not infrequently will do based on a single sample or very few samples.” This makes obvious sense where the issue is whether a product contains the chemical in question at all, and not the precise amount in any individual unit.” (Emphasis added.)

Ibid. at 226.

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