Reported / Citable
Background
Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses to provide clear and reasonable warnings before exposing individuals to chemicals known to cause cancer or reproductive toxicity. Private individuals can bring enforcement actions if they first provide 60-day notice to the Attorney General, district and city attorneys, and the alleged violators, and no prosecuting agency commences enforcement.
Implementing regulations (Cal. Code Regs., tit. 27, section 25903) specify that the notice must identify the name, address, and telephone number of the noticing individual or a responsible individual within the noticing entity, the alleged violators, the time period of the alleged violation, and the chemicals involved.
The Chemical Toxin Working Group (doing business as Healthy Living Foundation) sent 60-day notices to The Kroger Company, Ralphs Grocery Company, Hughes Markets, and Maplebear (Instacart) alleging Proposition 65 violations. The notices provided contact information for the Working Group’s outside counsel rather than for an individual within the noticing entity itself. The trial court granted defendants’ motion for judgment on the pleadings, ruling that the notice failed to strictly comply with the regulation’s requirement of contact information for a responsible person within the noticing entity. The Working Group appealed.
The Court’s Holding
The Second District Court of Appeal, Division Three, reversed and remanded. The court held that California Code of Regulations title 27, section 25903’s requirement of contact information for a responsible individual within the noticing entity is directory rather than mandatory, and that providing contact information for retained outside counsel substantially complies with the requirement.
The court found persuasive the recent Fourth District decision in Environmental Health Advocates, Inc. v. Pancho Villa’s, Inc., which addressed the same issue and reached the same conclusion. The two decisions together represent an emerging consensus among California appellate courts that the contact information requirement of section 25903 is not strictly mandatory.
The purpose of the contact information requirement is to ensure that recipients of the notice can communicate with someone who knows about the alleged violations and can respond to inquiries. Outside counsel retained to handle Proposition 65 matters is well-positioned to serve this function, often better than non-attorney employees of the noticing entity. Strict compliance is not necessary when the substantial purpose of the regulation is satisfied.
The court rejected defendants’ argument that requiring outside counsel contact would somehow evade the regulation’s purpose. Counsel for noticing entities are subject to professional duties and ethical rules that ensure responsible communication, and outside counsel often has more direct knowledge of the technical details of Proposition 65 violations than the entity’s officers or directors.
Key Takeaways
- Proposition 65 pre-suit notices that provide contact information for retained outside counsel rather than for an individual within the noticing entity substantially comply with California Code of Regulations title 27, section 25903.
- The regulation’s contact information requirement is directory, not mandatory, and substantial compliance with its purpose is sufficient.
- The Second District in Chemical Toxin Working Group joins the Fourth District in Pancho Villa’s in adopting the substantial compliance approach for Proposition 65 notice contact information.
- Defendants challenging Proposition 65 actions on procedural notice grounds should focus on more significant defects, such as failure to identify the chemicals or alleged violators, rather than on technical contact information requirements.
- Plaintiffs preparing Proposition 65 notices may rely on outside counsel contact information without forfeiting the right to file enforcement actions.
Why It Matters
This decision is important for Proposition 65 enforcement practice in California. The opinion confirms that the technical notice requirements should not be wielded to defeat substantively meritorious enforcement actions, particularly where the purpose of the requirement (enabling communication about the alleged violations) is satisfied through outside counsel.
For Proposition 65 plaintiffs and their counsel, the case provides assurance that providing outside counsel contact information in 60-day notices does not invalidate the notice. For defendants in Proposition 65 cases, the opinion narrows one of the procedural defenses commonly raised at the pleading stage. For California businesses generally, the decision underscores that defending Proposition 65 cases requires substantive engagement with the merits rather than reliance on technical notice procedural arguments. With both the Second and Fourth Districts now aligned on this issue, the substantial compliance approach is likely to become the prevailing rule throughout California.