The infamous “60-day Notice” is the smoke before the Prop 65 fire. A 60-day Notice is often followed by a settlement demand, and then a complaint if you don’t settle the claims within the notice period.
The 60-day notice
Prop 65 authorizes public and private enforcement. Public enforcement is straightforward – the California Attorney general, any district attorney, and any city attorney of a city with 750,000 residents may bring a suit.
Private enforcement is where it gets complicated. Any person can bring a Prop 65 claim “in the public interest” if:
- The private enforcer files the complaint more than 60 days after she “has given notice of the alleged violation … to the Attorney General and the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator.”
- After giving notice, none of the public enforcers “has commenced and is diligently prosecuting an action.”
In the Final Statement of Reasons for the 60-day Notice regulation, OEHHA explains that the notice requirement serves to not only “enable[e] law enforcement officials to investigate a notice, but [also] … [to define] the scope of the private person’s right to sue under the statute.” A 60-day Notice provides an opportunity for public enforcers to decide whether they should pursue the action in lieu of private enforcement. It also provides the alleged violator an opportunity to cure the violation, at least cutting off continuing penalties. Finally, it operates as a limitation on a private plaintiff’s right to bring claims on behalf of the public. Without the notice provisions, private plaintiffs could have open-ended enforcement authority.
A 60-day Notice must contain certain information to be valid:
- Copy of the Proposition 65 statute
- Description of the violation
- Identification of the private enforcer
- Time period of the violation
- Listed chemicals involved
- Route of exposure (inhalation, ingestion, dermal contract)
However, a 60-day Notice is not required to provide the exact location or time or date of purchase, the alleged level of exposure, or the UPC/SKU, model, or style number of the product purchased. Because the regulation requires little specificity, plaintiffs often send a 60-day Notice identifying a single product within a larger category of products, and then they seek discovery into all of a company’s products within that category, without purchasing any of the products or otherwise having a basis for alleging violations.
Certificate of merit
Proposition 65 also requires that the copy of the 60-day Notice provided to the Attorney General contain a “certificate of merit.” The enforcer must certify that she “has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person executing the certificate believes there is a reasonable and meritorious case for the private action.” The factual information relied upon as the basis for the certificate of merit must also be attached. The certificate of merit requirement is one of several modest Prop 65 reforms the Legislature enacted in 2001 to curtail abuses by private enforcers. Ideally, the certificate requirement mandates that a private plaintiff obtain facts supporting a violation and consult with an expert on exposure. However, many plaintiffs push the envelope, and the Attorney General has interceded when a 60-day Notice lacks merit.
Oddly, the certificate of merit and the factual information are not discoverable. They can only be revealed by motion of a prevailing defendant after litigating a case. If the judge finds there “was no credible factual basis for the certifier’s belief that an exposure to a listed chemical has occurred or was threatened,” the claim is deemed frivolous, permitting the defendant to obtain attorney’s fees. That’s right – only after responding to burdensome discovery and costly litigation will a judge look at whether there was any credible basis for bringing the claim in the first place.
Time to act
If you receive a 60-day Notice, don’t ignore it. The notice starts the clock ticking on enforcement, and taking action early can lessen the costs, expense, and burden of resolving Prop 65 claims. If a claim really seems bogus, the notice period also provides an opportunity to consult with the Attorney General and head off claims before they become full blown litigation.