On February 20, the California Court of Appeal issued a decision with significant implications for Proposition 65 litigation: Environmental Health Advocates, Inc. v. Pancho Villa’s, Inc., et al. In short, a private plaintiff’s technical non-compliance with notice requirements may no longer be a defense to Prop. 65 enforcement actions.
California’s Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly known as Proposition 65 (“Prop. 65”), requires that businesses provide warnings to California consumers before exposing them to chemicals known to the State of California to cause cancer or reproductive harm. There are over 900 chemicals on the Prop. 65 list. Prop. 65 imposes penalties on businesses that violate the law by failing to provide necessary warnings and allows enforcement actions to be brought by the California Attorney General or private individuals acting in the “public interest.” In practice, Prop. 65 enforcement actions are overwhelmingly brought by private plaintiffs.
A private plaintiff may only bring an enforcement action after providing a notice of violation to the Attorney General, local prosecutors, and the alleged violator, and they must wait 60 days after the notice to file a formal lawsuit. Per Prop. 65 and its implementing regulations, the notice must include specific information and a private plaintiff may not bring an action unless they have complied with all notice requirements.
For many years, defendants have successfully sought and achieved dismissal of Prop. 65 actions based on plaintiffs’ failure to strictly comply with the notice requirements. Under the Pancho Villa’s decision, that may no longer be a valid defense.
In Pancho Villa’s, the plaintiff allegedly failed to comply with two notice requirements: (1) instead of including contact information for the noticing individual or “a responsible individual within the noticing entity” as required by Prop. 65, the plaintiff included contact information for their lawyer and (2) the plaintiff included an outdated version of the official Prop. 65 summary required to be appended to the notice that did not contain all the information the current version provides.
The court concluded that while the plaintiff may not have strictly complied with all notice requirements, their notice was sufficient because the purpose of the notice was achieved. Importantly, the court established that “substantial compliance” is required for a Prop. 65 notice, and minor technical deficiencies may not invalidate a notice that otherwise satisfies the purpose of the notice requirement, in this case, “facilitating information exchange” and “giving [the defendant] a basic overview of Proposition 65 and directing it to ‘more specific guidance on compliance.’”
The court was clear that substantial compliance “means actual compliance in respect to the substance essential to every reasonable objective” of the rule. In other words, if the non-compliance means that the purpose of the notice requirement is not achieved, then the notice will be deficient. Substantial compliance merely excuses minor technical non-compliance that does not affect the goal of the notice requirement. For example, if the plaintiff fails to include any contact information or completely fails to attach the official Prop. 65 summary to the notice, this would not be substantial compliance.
What this Means for Businesses
Under this decision, minor technical deficiencies with notice requirements may no longer be a defense to private Prop. 65 enforcement actions if the notice substantially complies with the requirements and serves its intended purpose. Because this decision is new, this will likely be a case-by-case determination until subsequent caselaw clarifies which defects are material and which fall within the bounds of substantial compliance.
While this decision does not directly affect businesses’ Prop. 65 compliance obligations, it removes a hurdle for private plaintiffs bringing enforcement actions. It is now even more important for businesses to perfect Prop. 65 compliance.
