Craig Downs, executive director of Haereticus Environmental Laboratory
A San Diego-based nonprofit group is suing a marketer of hair dye based in New York for at least $1 million in damages, arguing that the company sells a Nicka K New York Magic Color Hair Dye product in California without proper Proposition 65 warnings.
Environmental Health Advocates Inc., which has the same address as the law firm representing the nonprofit – Entorno Law LLP – filed the lawsuit against Proxima Inc. on June 24 in San Francisco Superior Court. The plaintiff argues that the company failed to adequately inform consumers in the state that its dark auburn hair product exposes them to the chemical diethanolamine (DEA), which in 2012 was added to the Proposition 65 list of chemicals that pose significant cancer or reproductive health risks.
Proposition 65 requires companies whose products expose consumers to such health risks to provide appropriate warnings.
“... Defendants failed to provide a clear and reasonable warning to consumers and individuals in California who may be exposed to DEA through reasonably foreseeable use of the products,” the plaintiff’s five-page complaint states. “(Its) products expose individuals to DEA through dermal absorption.”
The lawsuit accuses the defendants of deliberate and not accidental actions. As required for Proposition 65 litigation, the plaintiff sent the hair dye marketer a 60-day Notice of Violation to the California Department of Justice.prior to the filing of a formal lawsuit.
A 2024 article posted by Exponent, an engineering and scientific consulting firm, detailed a rapid rise in the number of Proposition 65 notices of violations involving DEA. From 2013 to 2023, the average annual number of such notices for DEA was 26. But halfway through 2024, the number of such notices topped 300, the article said.
Companies that manufacture or market products containing DEA have been targeted for litigation since 2013, according to the California Chamber of Commerce.
A problem for businesses that sell such products is that while DEA is listed as a potential cancer risk, the California Office of Environmental Health Hazard Assessment (OEHHA) has not published an allowable concentration amount that poses no health risks, as it does for many other chemicals, according to the Exponent article.
The Nicka K New York Magic product does not appear to provide Proposition 65 warnings on its label or in its advertisements. The Nicka website indicates that the dark auburn dye has received poor consumer reviews, with only 38% giving it five stars, 8% grading it four stars and 54% saying it rates only one star.
Craig Downs, executive director of the nonprofit Haereticus Environmental Laboratory in Virginia, told the Southern California Record in an email that while industry has attempted to minimize DEA’s health risks, the science underpinning the risks does raise concern about the chemical’s toxicity.
“The ‘mechanism of toxicological action’ for cancer is solid for this one,” Downs said. “The organic/inorganic chemistry for these chemical reactions is basic and fundamental, as are the mechanisms for toxicity. Many of these lower-molecular-weight nitrosamine (compounds) are readily absorbed by the skin and go systemic.”
More than 22 years ago, the chemical was epidemiologically associated with cancer risks, he said. Downs advises consumers to steer away from personal-care products containing DEA, since plenty of products are available that don’t use it.
The Environmental Health Advocates complaint seeks civil penalties of $2,500 per day per violation, an injunction to stop the company from making or distributing the product in California without providing an adequate warning, and reasonable attorney fees and lawsuit costs.
The parties involved in the litigation did not respond to requests for comment.
