In Physicians Committee for Responsible Medicine v. McDonald’s Corporation, 224 Cal. App 4th 166 (Feb. 27, 2014) (PCRM), the California Court of Appeal affirmed a trial court victory by several major restaurant companies in a California Proposition 65 action.

The case was brought by an organization called the Physicians Committee for Responsible Medicine (PCRM), which promotes a vegan diet. PCRM claimed that the companies had violated Proposition 65 for failing to warn of alleged exposures to a chemical called “PhIP,” which may be formed as a byproduct of grilling chicken (whether prepared at home or in a restaurant). Id. at 170. In particular, PCRM sought warning signs specifically discussing the risks of cancer from consuming chicken -- warning language that departed significantly from Proposition 65 “safe harbor” warning language for restaurants. Id. In a first phase of the case, the restaurants won a ruling that PCRM was not entitled to seek specific warning language that differed from the regulatory safe harbor warning, which does not require mention of specific chemicals or specific products. Id. at 172.

In a second phase of the case, PCRM claimed that the restaurant companies had failed to post the regulatory safe harbor warning in California restaurants. Id. at 173-74. In the course of pre-trial proceedings, PCRM admitted that it had not conducted an investigation of warnings prior to issuing its Proposition 65 pre-suit notice letter. Id. at 176-77.

Under Proposition 65, a private enforcer must issue a 60-day notice letter before filing a lawsuit, and it must include a “certificate of merit” with the 60-day notice letter. Cal. Health & Safety Code § 25249.7(d)(1). The certificate of merit requires a plaintiff to have factual evidence showing a “reasonable and meritorious” case for the private action. Id. The restaurant companies moved to dismiss the lawsuit on the grounds that PCRM’s 60-day notice and certificate of merit were invalid due to PCRM’s failure to conduct an investigation. PCRM, 224 Cal. App 4th at 176-77.

The trial court granted judgment in favor of the restaurant companies. In a case of first impression on the question of whether Proposition 65 plaintiffs must investigate warning signage before issuing a pre-suit notice letter and certificate of merit, the Court of Appeal affirmed in its entirety the judgment of the trial court. Id. at 183. In addition to holding that the pre-suit notice and certificate of merit were defective, the Court of Appeal agreed that PCRM could not cure those defects by conducting an investigation after the lawsuit was filed. Id. at 179-82.

The PCRM decision establishes important constraints on private Proposition 65 plaintiffs. The decision makes clear that plaintiffs must have an adequate factual basis for all elements of their prima facie case before they file a lawsuit. This pre-suit requirement is a critical check on the powers of private plaintiffs, who are authorized under Proposition 65 to sue as “private attorneys general” without having to prove any injury or harm.