California Legal Brief

The Rule of The Chemical Toxin Working Group is that Proposition 65's 60-day pre-suit notice substantially complies with regulatory requirements when it provides the name and contact information of the noticing entity's outside counsel rather than a responsible individual within the noticing entity, under circumstances where the notice otherwise identifies the alleged violation with sufficient specificity to enable prosecuting agencies to assess the claim and allow violators to cure violations.

Appeal from judgment after granting motion for judgment on the pleadings in Superior Court, Los Angeles County.

Plaintiff Appellant was The Chemical Toxin Working Group, Inc. d/b/a Healthy Living Foundation, Inc. — the private enforcer seeking to bring a Proposition 65 action for failure to provide warnings about toxic chemicals in seafood products.

Defendants Respondents were The Kroger Company, Ralphs Grocery Company, Hughes Markets, Inc., and Maplebear Inc. — grocery retailers allegedly selling farm-raised mussels containing cadmium and lead without proper warnings.

The suit sounded in violation of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) for failure to provide clear and reasonable warnings about chemical exposure.

The key substantive facts leading to the suit were HLF served a 60-day notice claiming defendants sold farm-raised mussels containing cadmium, lead, and lead compounds known to cause cancer and reproductive toxicity without providing required Proposition 65 warnings to consumers. The notice identified HLF's chief officer David Steinman but provided only contact information for outside counsel Poulsen Law, directing all communications to "this office."

The procedural result leading to the Appeal: The trial court granted defendants' motion for judgment on the pleadings, ruling that HLF's 60-day notice failed to comply with regulatory requirements because it provided contact information for outside counsel rather than "a responsible individual within the noticing entity" as required by California Code of Regulations section 25903.

The key question(s) on Appeal: Whether Proposition 65's 60-day notice requirement that contact information be provided for "a responsible individual within the noticing entity" is directory rather than mandatory, and whether providing outside counsel's contact information constitutes substantial compliance.

The Appellate Court held that California Code of Regulations section 25903, subdivision (b)(2)(A)(1) is directory rather than mandatory, and HLF's notice substantially complied by providing contact information for retained counsel who was knowledgeable about the violation and capable of facilitating communication, as this served the regulation's core purposes of enabling prosecutorial assessment, allowing opportunity to cure violations, and defining the scope of private enforcement rights.

The case is inapplicable when the 60-day notice fails to provide sufficient information about the alleged violation itself (such as failing to identify the chemical, product, route of exposure, or time period), or when the designated contact person lacks sufficient knowledge about the alleged violation to facilitate meaningful communication about resolution.

The case leaves open whether outside counsel constitutes a "responsible individual within the noticing entity" under the literal language of the regulation, and what other deviations from section 25903's requirements might be excused under substantial compliance doctrine.