Responding to a Prop 65 60-day notice

A Prop 65 60-day notice comes from a person who intends to sue "in the public interest". Before filing, that person must send notice of the alleged violation to the California Attorney General, to the local district attorney, city attorney, or prosecutor, and to the alleged violator. A notice alleging a failure to warn must include a certificate of merit. The lawsuit can be filed only once more than 60 days have passed, and not at all if a public prosecutor has started and is diligently prosecuting an action on the same violation (Health and Safety Code 25249.7(d)).

Your options in the 60-day window:

1. Correct the practice — for example, add a compliant warning to the product going forward, and document the change. Whether that ends the matter is between you and the person who sent the notice.
2. Settle — negotiate terms with the person who sent the notice, usually through Prop 65 counsel.
3. Defend — challenge the allegation. Defenses the statute provides include: the exposure is below the no-significant-risk or no-observable-effect level, with the burden on you (HSC 25249.10(c)); federal law governs the warning in a way that preempts state authority (HSC 25249.10(a)); and the business has fewer than 10 employees (HSC 25249.11(b)). A lab test showing the chemical isn't in the product goes to the heart of the claim.

WARNING: The statute's cure procedure (HSC 25249.7(k)) is narrow. It covers only four kinds of exposure on the business's own premises: alcoholic beverages consumed there, certain chemicals formed by cooking food or drink prepared and sold there, environmental tobacco smoke, and vehicle exhaust in a parking facility. Even then it requires paying a civil penalty. It does not cover a product you import or sell.

TIP: Gather these documents right away: (1) any exposure assessment you have, (2) lab tests showing the chemical's concentration, (3) your sales into California for the period, (4) supplier disclosures or certificates of analysis for the product, and (5) any earlier Prop 65 correspondence.

The civil penalty for a violation is up to $2,500 per day for each violation (HSC 25249.7(b)(1)). That is why a notice deserves a prompt response and, in most cases, advice from counsel who handles Prop 65 matters.