Reported / Citable
Background
The Chemical Toxin Working Group (doing business as Healthy Living Foundation, or HLF) sued Best Naturals and Vita-Pure, alleging their dietary supplements contained lead in violation of the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65. Before filing suit, HLF served a required 60-day notice of intent to sue, as mandated by the statute and implementing regulations.
The pre-suit notice identified HLF as the noticing entity, named its chief executive officer David Steinman, and provided the law firm’s name, address, and telephone number for communications. However, the notice did not explicitly designate a “responsible individual” within HLF with that person’s direct address and phone number, as required by the literal text of OEHHA Regulation 25903.
Defendants moved for judgment on the pleadings, arguing the notice was fatally defective for failing to strictly comply with the regulation. The Alameda County Superior Court agreed and entered judgment for the defendants, finding the notice failed to meet the requirements. HLF appealed.
The Court’s Holding
The First District Court of Appeal, Division Two, reversed. Writing for a unanimous panel, Justice Richman held that the doctrine of substantial compliance—rather than strict compliance—governs whether a Proposition 65 pre-suit notice meets the requirements of Regulation 25903.
The court adopted the reasoning of two recent sister-court decisions addressing virtually identical facts. In Environmental Health Advocates, Inc. v. Pancho Villa’s Inc. (2026) 118 Cal.App.5th 778, the Fourth District held that substantial compliance is the proper standard, reversing a similar dismissal. Weeks later, the Second District’s Division Three reached the same conclusion in Chemical Toxin Group v. Kroger Company (April 29, 2026).
The court emphasized the purposes of the pre-suit notice—alerting alleged violators, informing public authorities, and encouraging pre-litigation settlement—and found HLF’s notice satisfied all of these. The notice identified the entity, named its CEO, and directed communications to counsel whose address and phone number appeared on the letterhead. The court noted that attorney involvement is not only appropriate but often required by the statute itself, since the certificate of merit must be signed by an attorney for represented parties. That no public prosecutor who received the notice raised any concern about its adequacy further underscored the point.
Key Takeaways
- Proposition 65 pre-suit notices are evaluated under a substantial compliance standard, not strict compliance. Three appellate districts have now reached this conclusion.
- A notice that identifies the noticing entity, names a principal, and provides counsel’s contact information can satisfy Regulation 25903 even without listing the address and phone number of a named “responsible individual” within the entity itself.
- Courts look to whether the notice served its core purposes: giving the alleged violator an opportunity to investigate and cure, alerting public enforcers, and enabling pre-litigation resolution.
- Attorney involvement in the notice process is consistent with the statute’s design, as represented parties are required to have attorneys sign the certificate of merit.
- Defendants arguing fee-driven abuse by plaintiff’s counsel must show evidence of actual abuse in the current case, not simply rely on criticism from older case law.
Why It Matters
This decision is one of three coordinated appellate rulings that effectively settle a question of significant importance to California environmental and consumer protection litigation: whether Proposition 65’s pre-suit notice requirements demand literal compliance or merely substantial compliance. With three appellate districts now aligned, businesses facing Proposition 65 enforcement actions will find it much harder to obtain dismissals based on technical deficiencies in pre-suit notices.
For California practitioners, the ruling means that notice challenges should focus on whether the alleged violator was meaningfully informed and had a real opportunity to resolve the dispute—not on whether every detail prescribed by the regulation appeared in exactly the right format. Companies receiving Proposition 65 notices should engage with the substance of the allegations rather than searching for technical escape hatches that courts are increasingly unlikely to honor.