Substance Over Formality in Proposition 65 Notice Compliance – First District Court Finds Substantial Compliance Sufficient

In Chemical Toxin Working Group Inc. v. Best Naturals, Inc., the California Court of Appeal addressed whether a Proposition 65 pre-suit notice must strictly comply with regulatory contact-information requirements. The court concluded that substantial compliance was sufficient and reversed a judgment entered for the defendants.

Background

Chemical Toxin Working Group Inc., (dba Healthy Living Foundation), filed suit against dietary supplement companies alleging violations of Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986. The trial court granted defendants’ motion for judgment on the pleadings, finding the plaintiff’s pre-suit notice defective because it did not strictly identify the name, address, and telephone number of a responsible individual within the noticing entity.

Proposition 65’s Notice Framework

Proposition 65 permits private parties to bring enforcement actions in the public interest, but only after satisfying statutory notice requirements. Before filing suit, a private enforcer must give notice of the alleged violation to the alleged violator, the Attorney General, and appropriate local public prosecutors, and then wait at least 60 days.

The governing regulation further specifies the content required in the notice. Most notably, the notice must identify the alleged violator, the approximate time period of the alleged violation, the listed chemical involved, and “the name, address, and telephone number of the noticing individual or a responsible individual within the noticing entity and the name of the entity.” The purpose of this notice procedure is to give alleged violators and public enforcement agencies enough information to evaluate the claim, decide whether to investigate, and potentially resolve the matter prior to litigation.

The Dispute As to Notice

The plaintiff’s notice was sent on law firm letterhead by counsel representing Healthy Living Foundation and directed communications regarding the notice to the law firm. It identified the plaintiff’s chief officer in a description of Healthy Living Foundation. Defendants argued that this notice failed to comply with the regulation because it did not provide the address nor telephone number of a responsible individual within the noticing entity itself. They contended that the regulation at issue required strict compliance, and that because the notice directed communications to counsel rather than an internal individual at Healthy Living Foundation, the action could therefore not procced.

The trial court agreed with Defendant’s stance, concluding that although the notice listed Healthy Living Foundation’s chief officer, it did not state that he was the responsible individual within the organization, and it relied instead on counsel’s contact information, and entered judgment for defendants on such basis.

The Court of Appeal’s Substantial Compliance Analysis

Plaintiff appealed, and the Court of Appeal reversed the decision of the trial court. The Court of Appeal framed the issue as whether the statutory and regulatory notice requirements could be satisfied by substantial compliance, and whether the plaintiff’s notice met that standard, and found the answer to be yes to both.

In doing so, the court adopted the reasoning of Environmental Health Advocates, Inc. v. Pancho Villa’s Inc., a recent Court of Appeal decision involving a similar Proposition 65 notice issue.

In Pancho Villa’s, the notice also identified outside counsel as the contact, and the Court of Appeal held that substantial compliance applied and was satisfied. The court in Best Naturals found that reasoning persuasive and applied it to the case before it.

The court also noted another recent decision in The Chemical Toxin Group v. Kroger Company, which reached the same conclusion where the pre-suit notice identified an attorney at the law firm representing the noticing party as the contact person.

With Best Naturals, the court observed, California appellate decisions had consistently rejected the argument that such notices fail merely on the basis that they identify counsel as the point of contact.

The Purpose of Notice

The court’s reasoning strongly considered the role of attorneys in Proposition 65 matters. While acknowledging that earlier Proposition 65 cases had been critical of certain attorney driven settlements, the Court nonetheless found the defendant’s argument that strict adherence would promote direct communication and avoid driving up needless attorney’s fees unpersuasive, particularly because there was nothing in the record to indicate that attorneys were misusing the notice process in the case at issue.

The Court emphasized that identifying counsel as the point of contact does not undermine the purpose underlying the notice requirement. Proposition 65 notices and certificates of merit often involve highly complex issues, including exposure analysis and consultation with experts, as a result of which counsel is often best positioned to communicate with alleged violators and public enforcers. The Court also noted in its substantial compliance analysis that the same notice had been sent to the Attorney General and to local prosecutors, none of whom objected that notice was inadequate. The Court of Appeal reversed the judgment and remanded the case with directions to vacate the order granting defendants’ motion for judgment on the pleadings and enter a new order denying the motion. The plaintiff was awarded its costs on appeal.

Conclusion and Implications

Best Naturals informs Proposition 65 litigants that substantial compliance is the standard for pre-suit notice compliance. Notices still must be drafted carefully and private enforcers should still make every effort to provide the information the regulation requires, but the court makes clear that the notice will not fail simply because it directs communications to counsel. Ultimately, what is important is that notice substantially serves the statutory and regulatory purposes of informing alleged violators and public prosecutors of the claim. The decision makes procedural challenges to Proposition 65 notices more difficult for defendants where the alleged defect does not appear to impair evaluation, investigation, or potential resolution of the alleged violation.

This article was originally published in the July 2026 edition of the California Water Law & Policy Reporter. It is posted here on our website with the permission of California Water Law & Policy Reporter, Argent Communications Group, Argent & Schuster, Inc., and the authors, Carson Trigueiro and Derek Hoffman. All rights remain with the original publisher.

Carson Trigueiro is a business litigation attorney with experience in assisting with numerous types of both business and trust estate disputes. He can be reached at ctrigueiro@fennemorelaw.com.

Derek Hoffman is a seasoned water resources attorney and a director in our Natural Resources practice group. He assists clients in developing and implementing effective strategies to obtain, maintain, protect and transfer water rights and supplies. He also practices in the areas of business and real estate. He can be reached at dhoffman@fennemorelaw.com.