Editor’s Note: Since our original post, there have been two significant changes:

  • In 2017, the California Legislature amended the certificate of merit requirements. The amendments require the Attorney General to notify a private enforcer and the alleged violator if the AG finds no merit to an action.  The amendments also make the basis for the certificate of merit discoverable in litigation (to the extent not otherwise privileged).
  • The 2016 revised warning regulation created the “five business day exemption” for retailers. The five business day period is triggered by “actual knowledge,” which presumably is established by the 60-day notice, as discussed in more detail below.

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.

Notice contents

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)

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. 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 is required to notify a private enforcer and the alleged violatore when a 60-day Notice lacks merit.

The basis of the certificate of merit is discoverable in litigation (prior to 2017, it was not), subject to any objections a private enforcer could make about relevance or privilege. Defendants have a prima facie right to seek discovery of the factual basis for the certificate. The burden then shifts to the private enforcer to justify any privilege or work product objections, as is the case with any other assertion of privilege. If a defendant challenges the merit of a claim, and a judge finds the case frivolous because there “was no credible factual basis for the certifier’s belief that an exposure to a listed chemical has occurred or was threatened,” the defendant may be able to obtain attorney’s fees.

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. For retailers that meet the conditions of the five business day exemption, in the absence of other exposure information, the 60-day Notice almost certainly constitutes “actual knowledge” for any products specifically identified in the notice.