Proposition 65 Defense Attorney

Defending Clients Facing Proposition 65 Litigation

If your business has received a Prop 65 notice, a Proposition 65 defense attorney at Cadden & Fuller LLP can evaluate the claim and outline your options before you respond.

 Proposition 65 – also called the Safe Drinking Water and Toxic Enforcement Act – is a California law requiring businesses to alert consumers if a product includes certain dangerous chemicals known to cause cancer or reproductive harm. The law now covers approximately 900 listed chemicals and applies to nearly any business with ten or more employees that sells, manufactures, or distributes products reaching California.

When businesses are accused of violating Proposition 65 laws, litigation may be brought forward through the attorney general’s office, district attorneys, municipal attorneys in cities over 750,000 people, or private citizens. The costs of a negative resolution can be significant and may include fines or other civil penalties.

As a California-based firm with an extensive focus on commercial litigation, the attorneys at Cadden & Fuller LLP are educated and experienced in effectively resolving litigation relating to alleged breaches of Proposition 65.

Proposition 65 Defense Backed by Decades of California Business Litigation Experience

Cadden & Fuller LLP has represented Orange County businesses in state and federal court for decades, and that trial experience carries directly into how the firm handles a Proposition 65 notice or lawsuit.

Our Proposition 65 defense lawyers can:

• Review a 60-Day Notice line by line to determine whether it names the correct products, the correct chemicals, and the correct legal entity before you respond
• Evaluate whether the alleged exposure level actually triggers a warning requirement, or whether the notice overstates the risk
• Negotiate directly with the noticing party’s counsel to resolve a claim before it becomes a lawsuit, where that is the client’s best option
• Defend the business in California Superior Court or federal court if the matter is filed, drawing on the firm’s admissions before the California Bar, the Ninth Circuit, and multiple U.S. District Courts
• Advise on warning label language and compliance going forward, including the transition to OEHHA’s revised short-form warning rules ahead of the January 1, 2028 deadline
• Coordinate with the transactional side of the firm so that supplier agreements, indemnification clauses, and product labeling obligations are addressed at the contract stage, not just after a notice arrives

What Counts as a Proposition 65 Violation?

A Proposition 65 violation happens when a business knowingly and intentionally exposes someone in California to a listed chemical without first giving a “clear and reasonable” warning, or when it discharges a listed chemical into a source of drinking water.

There is one key exception: no warning is required if the exposure falls below the chemical’s “safe harbor” level — the amount OEHHA has determined poses no significant cancer risk or no observable reproductive harm. Above that threshold, a warning is legally required regardless of how small the actual health risk is, which is why even a trace amount of a listed chemical can trigger a claim.

The obligation applies to any business with ten or more employees that sells, manufactures, distributes, or imports products reaching California, including through online sales. The list of covered chemicals is maintained by OEHHA and now runs close to 900 substances, including lead and phthalates such as DEHP. (see the OEHHA Proposition 65 chemical list).

Liability depends on whether a warning was given, rather than on whether anyone was actually harmed. Consequently, a business can be considered a “violator” under the statute even with a fully compliant, safe product if the required warning language was missing or worded incorrectly.

Which Products Draw the Most Proposition 65 Claims

Certain categories of products draw a disproportionate share of Proposition 65 notices. According to a review of California Attorney General settlement filings from the first quarter of 2024:

• Metals, mostly lead, were named in roughly half of all settlements and judgments
• Phthalates such as DEHP were involved in about a third of claims
• Food and dietary supplement products accounted for close to 30% of that quarter’s claims
• Bags, totes, and similar accessories made up another 17% of claims

Businesses that manufacture, import, or private-label goods in these categories, along with anyone selling ceramics, jewelry, vinyl products, or supplements into California, face a meaningfully higher baseline risk of receiving a notice, even when they never intended to include a listed chemical in the finished product.

How a Proposition 65 Case Usually Starts

Most Proposition 65 cases begin with a 60-Day Notice. A private citizen or advocacy group must notify the business, the California Attorney General, and the local district attorney at least 60 days before filing suit.

If no government agency acts within that window, the private party can sue directly and collect a share of any penalty recovered. This “private enforcer” structure is why the same small group of firms and plaintiffs file hundreds of notices every year against businesses of every size.

When a notice like this reaches a client, our attorneys review it line by line to confirm it names the correct products, chemicals, and legal entity, and evaluate whether the alleged exposure actually triggers a warning requirement before recommending a response.

What a Proposition 65 Claim Can Cost

The financial exposure in a Proposition 65 matter is rarely limited to the statutory penalty. Under Health & Safety Code § 25249.7(b), civil penalties can reach $2,500 per day for each violation. In practice, most cases resolve short of that maximum through settlement, but the fees involved can still be substantial.

According to the California Department of Justice, in 2019, California businesses resolved more than 898 Proposition 65 claims out of court for a combined total near $30 million, and attorneys’ fees made up roughly 76% of that figure.

Even an uncontested, low-dollar claim can carry legal costs well beyond the underlying penalty, which is why an early, informed response matters.

New Warning Label Rules Taking Effect by 2028

In December 2024, OEHHA finalized changes to the “short-form” warning that many businesses rely on for packaging and product listings.

Effective January 1, 2025, a short-form warning must name at least one listed chemical for each type of harm at issue. Businesses have until January 1, 2028 to transition, though products already labeled before that date can continue to be sold without a relabel. Any business using a generic Proposition 65 warning on its packaging or website should review its label language well before the deadline.

This applies equally to goods sold in Orange County storefronts and to inventory sold online into California from anywhere in the country, since the warning obligation follows the sale, not the seller’s location.

Frequently Asked Questions

What is Proposition 65?

Proposition 65 is a California law requiring a clear warning before exposing anyone to a chemical the state has listed as causing cancer or reproductive harm.

Who can sue my business under Proposition 65?

The California Attorney General, a district attorney, a city attorney, or a private citizen who has given 60 days’ notice can bring a claim.

How much can a Proposition 65 violation cost?

Civil penalties can reach $2,500 per day for each violation, and legal fees often add far more to a final settlement.

What is a 60-Day Notice?

It is a formal notice a private enforcer must send to the business and government at least 60 days before filing a Proposition 65 lawsuit.

Do I have to test my own products for listed chemicals?

No law requires self-testing, but a business without its own test data may struggle to challenge a notice’s chemical claims.

Can a Proposition 65 case settle without going to court?

Yes. Most Proposition 65 claims resolve through an out-of-court settlement, which must still be reported to the Attorney General.

Does Proposition 65 apply to online sales?

Yes. A warning must be given before a California resident completes an online purchase or receives the product.

When do I need to update my Proposition 65 warning label?

Businesses using short-form warnings have until January 1, 2028 to name at least one listed chemical for each type of harm.

What should I do if I receive a 60-Day Notice?

Do not ignore it or respond informally. Send the notice to counsel promptly so the chemical claim, the product testing behind it, and your settlement options can be evaluated before the 60-day window closes.

Which products are most often targeted under Proposition 65?

Products containing lead or phthalates, along with food, supplements, and bags or accessories, account for the largest share of recent claims.

Contact Cadden & Fuller LLP Regarding Proposition 65 Litigation

Our Prop 65 defense attorneys consists of accomplished trial lawyers who have worked in state and federal jurisdictions across the state. We understand the risks a Proposition 65 case creates, and we work quickly to mitigate the short- and long-term costs such a lawsuit may cause you and your business.

Whether your matter is filed in Orange County Superior Court or in federal court, we move quickly to evaluate the notice, the underlying product testing, and the fastest realistic path to resolution. We help clients address supplier agreements, indemnification clauses, and labeling obligations before a notice ever arrives.

If you are the target of a Proposition 65 lawsuit, call our Irvine office at 949-788-0827. You can also reach out through our online contact form.