No need for ‘strict compliance’ with CA Prop 65 toxic suit rules to sue

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A California state appeals panel says people suing businesses under California's controversial and unique Prop 65 law don't need to completely comply with the procedural notice requirements in the law to sustain their legal claims against food producers and other manufacturers for allegedly selling products that contain substances California state regulators may consider toxic, regardless of ongoing scientific debate.

The underlying litigation involves a complaint filed by regular repeat Prop 65 plaintiff Environmental Health Advocates against tortilla supplier Pancho Villa’s, accusing the company of selling tortillas containing acrylamide. The organization sued under the so-called Safe Drinking Water and Toxic Enforcement Act, which California voters enacted in the 1986 Proposition 65 referendum.

San Diego County Superior Court Judge Joel Wohlfeil dismissed the complaint, ruling the group didn’t strictly adhere to language in the law requiring private parties suing under Prop 65 in the public interest to give notice of the alleged violation to the accused party, local prosecutors and the state Attorney General. The law then requires them to wait at least 60 days for the government bodies to decide if they will seek to enforce the law or allow the private plaintiffs to sue.

Prop 65 has generated a wide and ever-growing avenue to sue businesses in California. Thousands of the such lawsuits are filed annually in the Golden State, generating tens of millions of dollars in year for plaintiffs’ lawyers who file the lawsuits.

Although EHA did provide notice, Pancho Villa’s challenged its validity. One concern was supplying contact information for the EHA’s attorney — Nicholas & Tomasevic — rather than its own organization. A second was attaching an outdated version of the Office of Environmental Health Hazard Assessment’s Prop 65 summary.

EHA challenged the ruling before the California Fourth District Appellate Court, arguing it didn’t need to strictly comply with procedural steps in order for the claims to remain valid.

Justice Truc Do wrote the panel’s opinion, filed Feb. 20; Justices Judith McConnell and Martin Buchanan concurred.

Do explained Prop 65’s prohibition barring “businesses from knowingly exposing consumers to chemicals known by the state to cause cancer or reproductive toxicity” and said EHA alleged Pancho Villa’s violated a section of the law carrying a $2,500 daily civil penalty per violation. When a court orders companies to pay, the state treasury gets 75% and the entity suing "in the public interest" keeps the remainder.

EHA began its process in September 2020 with a notice the tortillas allegedly contained acrylamide, which the state put on the list of substances that trigger Prop 65 requirements in 1990. A year later it issued an amended notice, listing a previously unnamed tortilla manufacturer and a distributor, and 60 days later it amended the complaint to reflect the change. But Do said the only issue on appeal is “the sufficiency of EHA’s original notice to Pancho Villa’s.”

Although the panel’s opinion called acrylamide “a known carcinogen,” a 2020 federal court opinion in California Chamber of Commerce v. Bonta allowed a preliminary injunction preventing California from requiring a Prop 65 warning for acrylamide due to “unresolved scientific debate” regarding if the chemical was a carcinogen when used in food. The U.S. Ninth Circuit Court of Appeals affirmed the ruling in 2022, and in May 2025 U.S. District Judge Daniel Calabretta issued a summary judgment ruling on behalf of the Chamber, permanently blocking the state from requiring Prop 65 warnings for acrylamide.

Do further explained the “substantial compliance doctrine” through which an entity can satisfy requirements so long as they meet the law’s objective or purpose even if falling short of full formal compliance. She said that doctrine is inapplicable when a law mandates certain requirements instead of merely directing them and noted the California Supreme Court doesn’t have a simple test for determining whether a provision is “mandatory” or “directory.” So, she said, the prevailing concern is whether a challenged notice element “is essential to promote the overall design of the statute or regulation.”

The panel determined Prop 65’s notice requirements can be tested on the "substantial compliance" standard, reversing Judge Wohlfeil’s ruling and remanding the complaint for further proceedings.

When OEHHA adopted the regulatory section in question, it “explicitly noted the three core functions” of Prop 65’s notice requirements, Do wrote, adding the agency stipulated the “information requirements” were intended “to ensure that notices provide adequate information necessary for the recipients to evaluate the nature and scope of the alleged violation” and “for public prosecutors to evaluate the merit and significance of the alleged violation.”

The panel also said “the agency further cautioned that ‘the proposed regulation is not intended to require that highly technical information be provided, to require disclosure of the evidence by which a violation will be proven, or to otherwise turn the notice requirement into a trap for the unwary.’ ”

Although EHA included the name of its legal firm rather than an internal contact, the panel said it still met the obligation to give Pancho Villa’s an opportunity to make a connection to resolve the issue or prepare for civil litigation. As to the OEHHA Prop 65 summary, the agency mandated inclusion of that information to give general information about the law, so even a slightly outdated version could provide enough to pass muster.

While Pancho Villa’s cited several older cases to support the strict compliance position, Do wrote none actually “holds strict compliance is the governing test for Proposition 65 notice requirements, nor have we found one. It appears no case has addressed this specific question.”

After determining the "substantial compliance" standard applies, the panel reviewed how EHA met that bar. It ordered Judge Wohlfeil to vacate his order granting the company’s motion for judgment and enter a new order denying the motion. EHA is allowed to recover the costs of pursuing the appeal.

Environmental Health Advocates is represented by Entorno Law.

Pancho Villa’s is represented by Aguirre & Severson.

Jonathan Bilyk contributed to this report.