Proposition 65 Notice Defects: Perfection Not Required

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