How to Respond to a Proposition 65 60-Day Notice of Violation in California
Receiving a Prop 65 60-Day Notice of Violation means a private party intends to sue your business for failing to warn California consumers about toxic chemicals. You generally have a very narrow window to respond and protect your company.
Doing business in California comes with unique legal challenges, and none are more notorious than the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65. If you manufacture, distribute, or sell products to residents in Los Angeles, San Francisco, San Diego, or anywhere else in the state, you must provide clear warnings if your product contains any of the roughly 900 chemicals listed by the state. When a "bounty hunter" (a private enforcer or law firm) believes you have violated this law, they will serve you with a 60-Day Notice of Violation. This terrifying document is the required legal precursor to a formal lawsuit in a California Superior Court. Panic is a natural reaction, but immediate, calculated action is what will save your business. This guide explains exactly what to do when that notice arrives. Because these claims are incredibly aggressive, we strongly urge you to use our directory to find a highly experienced local California defense attorney immediately.
Step-by-Step Guide to Handling a 60-Day Notice
Ignoring a Proposition 65 notice is the worst mistake a business can make. The potential penalties can reach $2,500 per violation, per day. Here is the structured path your legal team will take to defend your business.
Step 1: Assessing the Claims
The moment you receive the notice, you must identify exactly which product and which specific chemical (e.g., lead, phthalates, cadmium) is being targeted. Your lawyer will cross-reference the claim with the California Office of Environmental Health Hazard Assessment (OEHHA) Sacramento list of chemicals. They will determine if the plaintiff actually tested your product or if they are just making broad, speculative accusations against your entire industry.
Step 2: Implementing an Immediate Litigation Hold
You must immediately instruct your entire staff to stop deleting emails, destroying manufacturing records, or throwing away old product packaging. This is known as a "litigation hold." In a California court, destroying evidence after receiving a 60-Day Notice can result in massive financial sanctions and essentially guarantee you will lose the lawsuit.
Step 3: The California Attorney General's Review Timeline
The private enforcer must send a copy of the 60-Day Notice to the Office of the Attorney General Sacramento. The state has exactly 60 days to review the allegations. During this time, the private enforcer cannot officially file their lawsuit in the local Superior Court. If the Attorney General decides to take over the case (which is rare), you will deal with the state. Usually, the state remains silent, giving the private bounty hunter the green light to sue you on day 61.
Step 4: Negotiating a Tolling Agreement
If you need more time to test your products in an independent laboratory, your attorney can negotiate a "Tolling Agreement" with the plaintiff's lawyer. This is a formal legal contract that temporarily pauses the 60-day countdown clock. It prevents the plaintiff from filing a lawsuit in court while both sides attempt to negotiate a private settlement or share lab results.
Step 5: When to Pull Products from Shelves
Should you immediately stop selling the product in California? That depends on your lawyer's advice. If you know the product lacks a warning and clearly contains a listed chemical, continuing to sell it intentionally will multiply your daily fines under Cal. Health & Safety Code § 25249.7. Many businesses immediately halt shipments to California addresses or instruct local retailers to pull the inventory while the legal dispute is resolved.
How Much Does a Prop 65 Defense Cost in California?
Fighting a Proposition 65 claim is an expensive endeavor, as you are often dealing with aggressive plaintiffs who use these lawsuits as a business model.
| Expense Type | Estimated Cost (USD) |
|---|---|
| Independent Laboratory Testing | $500 - $2,500 per product |
| Typical Settlement Amounts | $15,000 - $50,000+ per chemical |
| Plaintiff's Attorney Fees (If you settle) | Usually 60% to 75% of the total settlement |
| Defense Attorney Retainer | $5,000 - $15,000+ |
How Long Does the Process Take?
The initial phase is defined by the strict 60-day waiting period. If your lawyer successfully negotiates an early out-of-court settlement, the entire ordeal can be wrapped up in 3 to 6 months. However, if you choose to fight the bounty hunter in a formal trial at a California Superior Court-arguing that your product's exposure levels fall below the state's "Safe Harbor" limits-the litigation can easily drag on for 18 to 36 months.
Frequently Asked Questions (FAQ)
Do I have to respond if my business is not located in California?
Absolutely. If your products are sold to consumers inside California (even through online stores or third-party distributors), you are subject to the state's jurisdiction and can be sued in a California court.
Can I just put a warning label on my products right now and make the lawsuit go away?
Fixing the problem now prevents future violations, but it does not erase your past liability. The plaintiff can still sue you for the days your product was sold without a warning before you received the notice.
What is a 'Bounty Hunter' in Prop 65?
Under California law, any private citizen can file a Prop 65 lawsuit in the public interest. Because successful plaintiffs get a portion of the penalty and their attorney fees paid, specialized law firms mass-produce these notices for profit.
Can my supplier pay for this lawsuit?
If you have a strong indemnification clause in your vendor contract, you may be able to force the overseas or out-of-state manufacturer to pay the settlement and your legal defense costs.
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