Failure to Strictly Comply With Prop. 65 Notice Is Not Fatal

Tuesday, February 24, 2026

Page 1

Court of Appeal:

Failure to Strictly Comply With Prop. 65 Notice Is Not Fatal

Opinion Says Trial Judge Erred in Taking Rigid View of Regulation Governing Procedural Steps for Private Parties Pursuing Legal Action, Announces Substantial Compliance Is Sufficient

By Kimber Cooley, associate editor

Div. One of the Fourth District Court of Appeal has held, in a case of first impression, that the failure to strictly comply with a regulation setting forth the steps that a private party must take before filing legal action under Proposition 65, a statute that was adopted to protect the public from unwilling exposure to toxic chemicals and which gives prosecutorial agencies a first-right-of-refusal regarding enforcement, is not fatal to the litigation.

Justice Truc T. Do authored Friday’s opinion, joined in by Presiding Justice Judith McConnell and Justice Martin N. Buchanan, saying:

“The question presented in this appeal is whether a party’s failure to strictly comply with a particular procedural step of the notice requirements…will, or will not, have the effect of invalidating a Proposition 65 action. No case has answered this specific question. We conclude [that the regulation] is to be given directory effect and substantial compliance is the governing test.”

Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, was approved by voters through the initiative process. The law requires the state to publish a list, which must be updated annually, of chemicals known to cause cancer, birth defects, or other reproductive harm and mandates that businesses provide a “clear and reasonable” warning before knowingly exposing anyone to harmful levels of an enumerated substance.

Private Action

A private individual seeking to file legal action in the “public interest” must first provide notice of an alleged violation to the Attorney General, local prosecutors, and the asserted violator. If the prosecutorial agencies fail to act within 60 days, the individual or entity may pursue remedies in court, which include civil penalties of up to $2,500 per day for each violation, with 75% of those proceeds payable to the State Treasurer’s Office.

Sec. 25903 of Title 27 of the Code of Regulations specifies that the 60-day notice must provide contact information for “a responsible individual within the noticing entity” as well as identify the purported violator, the chemical involved, the time-period alleged, and the party must attach a copy of a summary of the act (“Appendix A”) prepared by the Office of Environmental Health Hazard Assessment (“OEHHA”).

The question arose after Environmental Health Advocates (“EHA”), a group that describes itself online by saying that “we source, identify, and test products that potentially violate” Proposition 65, filed suit against Pancho Villa’s Inc., the owner of a San Diego-area local grocery store, in 2021, asserting that the company sold tortillas that exposed consumers to acrylamide, a Proposition 65-listed chemical that is linked to cancer.

Notice of Alleged Violation

In September 2020, EHA sent notice to the grocer and the prosecutorial agencies, providing that all communication be directed to its attorneys, the San Diego law firm of Nicholas & Tomasevic LLP, and including an outdated version of Appendix A.

Pancho Villa’s Inc. filed a motion for judgment on the pleadings in April 2024, asserting that EHA’s notice was deficient because providing contact information for retained counsel does not meet the requirement that a party must provide details for a person “within the noticing entity,” and arguing that the deficiency deprived it of the opportunity to informally resolve the issue. They also took issue with failing to provide the current version of the summary.

EHA opposed the motion, arguing that it substantially complied with §25903. On June 3, 2024, San Diego Superior Court Judge Joel R. Wohlfeil sided with the grocery store, reasoning that “[t]he intent behind the pre-suit notice is to enable businesses targeted by [Proposition 65] actions to economically and efficiently address concerns raised in the pre-suit notice by directly communicating with the private citizen enforcer.”

As to the issue with the attached appendix, Wohlfeil noted that the summary was superseded by a May 2017 revision that contained “additional information regarding: a grace period, businesses with 9 or fewer employees, [and] exposure to naturally occurring chemicals in food….”

Substantial Compliance

Do noted that “[t]he substantial compliance doctrine is commonly understood to mean” that a party has complied with the objectives or purposes of a rule even if some formal requirements are not met.

However, she pointed out:

“[S]trict compliance with procedural requirements is required for provisions with mandatory effect, whereas substantial compliance will suffice for provisions with directory effect.”

Saying that whether a particular provision is mandatory or directory depends on legislative intent, she wrote:

“Proposition 65’s 60-day notice serves three core functions. It is to provide information necessary to (1) enable prosecuting agencies to…assess whether to…file an enforcement action on behalf of the public; (2) allow violators ‘an opportunity to cure…’ and ‘…prevent the accrual of any further liability for penalties’; and (3) to ‘defin[e] the scope of the private person’s right to sue under the statute.’ ”

The jurist continued:

“[O]ne purpose of the notice provisions is to promote dialogue and give the alleged violator an opportunity to cure alleged violations. Direct contact between the noticed entity and the noticing party’s principal is not essential to promoting this purpose, or any of the others stated above. Indeed, there is no ‘detailed and specific’ mandate which requires or explains why contact must occur directly between the noticed party and noticing party. The provision is thus given directory effect.”

Addressing Wohlfeil’s ruling, Do remarked:

“Despite the trial court’s pronouncement that it ‘becomes a cumbersome, expensive process if the targeted business is forced to communicate through counsel,’ the noticing party’s retained counsel may, in fact, be in the best position to communicate about the alleged violation….A retained attorney who consulted with experts is…well positioned to communicate with alleged violators and public enforcers.”

As to the attachment, she said:

“[N]either the Act nor its implementing regulations specify that the most current version must be attached to a party’s notice of violation….Because California voters, the Legislature and OEHHA have not required the current version, or any specific version, of Appendix A, it would be contrary to the statute’s remedial purpose to invalidate a Proposition 65 action brought in the public interest because a notice attached an earlier version of OEHHA’s summary….”

Comparing the deficiencies in EHA’s notice against this backdrop, she opined:

“We conclude the failure to provide contact information of ‘a responsible individual within the noticing entity’…and attachment of an older summary of Proposition 65 do not defeat these overall objectives of the 60-day notice.”

The case is Environmental Health Advocates Inc. v. Pancho Villa’s Inc., D084705.

According to multiple San Diego-area news outlets, Pancho Villa Farmers Market closed its doors last year. It was founded by Stephen W. Boney, a member of the family behind the popular chain Sprouts Farmers Market.