California Legal Brief

The Rule of Environmental Health Advocates, Inc. v. Pancho Villa's, Inc. is that Proposition 65's pre-suit notice requirements are given directory effect and substantial compliance is the governing test, under circumstances where technical deviations from specific notice requirements do not undermine the core purposes of enabling prosecuting agencies to assess potential enforcement actions, allowing violators to cure violations, and defining the scope of the private party's right to sue.

Appeal from judgment after motion for judgment on the pleadings in Superior Court, San Diego County.

Defendant Appellant was Pancho Villa's, Inc. — the tortilla manufacturer that received a Proposition 65 notice alleging its products exposed consumers to acrylamide.

Plaintiff Respondent was Environmental Health Advocates, Inc. (EHA) — the private enforcement entity that served the 60-day notice and brought the public interest enforcement action.

The suit sounded in Proposition 65 enforcement for failure to warn consumers about exposure to acrylamide, a known carcinogen, in tortilla products.

The key substantive facts leading to the suit were EHA sent a 60-day pre-suit notice to Pancho Villa's alleging its tortilla products exposed consumers to acrylamide without adequate warnings. The notice provided contact information for EHA's retained counsel rather than "a responsible individual within the noticing entity" and attached an outdated version of OEHHA's Proposition 65 summary (Appendix A).

The procedural result leading to the Appeal: The trial court granted Pancho Villa's motion for judgment on the pleadings, ruling that EHA's notice was defective because it provided counsel's contact information instead of an individual within EHA and because it attached an outdated version of Appendix A, requiring strict compliance with all notice requirements.

The key question(s) on Appeal: Whether a party's failure to strictly comply with particular procedural steps of the notice requirements under section 25903 of the regulations will invalidate a Proposition 65 action, or whether substantial compliance is sufficient.

The Appellate Court held that section 25903 is to be given directory effect and substantial compliance is the governing test, where EHA's notice substantially complied by providing adequate information to assess the nature of the violation, contact information through counsel that enabled communication for resolution, and a general summary of Proposition 65 that accomplished the core informational purpose even if not the current version.

The case is inapplicable when there is complete failure to provide required notice elements (such as entirely missing certificates of merit, failure to identify the chemical, or complete absence of required attachments) or when technical deviations actually undermine the core purposes of enabling prosecutorial assessment, violator communication, or defining the scope of enforcement rights.

The case leaves open what level of deficiencies in notice content would constitute failure to substantially comply with the directory requirements, and whether other types of technical deviations beyond contact information and Appendix A versions might require strict compliance.