Environmental Health Advocates v. Pancho Villa’s
Horst Legal Counsel | February 2026
California businesses that sell consumer products know the rhythm: a Proposition 65 notice arrives, the 60-day clock starts, and the company has to decide whether to settle, fix the alleged exposure, or prepare for litigation. For years, defendants have fought back by scrutinizing every line of the pre-suit notice, hoping that a technical deficiency would kill the case before it ever reached the merits. That strategy just got significantly harder.
In Environmental Health Advocates, Inc. v. Pancho Villa’s, Inc., the Fourth District Court of Appeal answered a question no California court had squarely addressed: are the procedural requirements of a Proposition 65 pre-suit notice mandatory, requiring strict compliance, or directory, requiring only substantial compliance? The court held they are directory. That single distinction reshapes how both sides should approach Prop 65 notice disputes going forward.
What Happened
Environmental Health Advocates (EHA) sent Pancho Villa’s a 60-day pre-suit notice alleging that its tortilla products exposed consumers to acrylamide, a known carcinogen. The notice identified the chemical, the product by name and UPC number, the route of exposure, and the timeframe. It attached OEHHA’s Proposition 65 summary and a certificate of merit.
Pancho Villa’s moved for judgment on the pleadings, arguing the notice was fatally defective in two ways. First, the notice listed contact information for EHA’s outside counsel rather than an individual “within” EHA itself, as the regulation’s text requires. Second, the original notice attached an older version of OEHHA’s Proposition 65 summary rather than the most current revision. The trial court agreed and dismissed the case.
The Holding: Substantial Compliance, Not Strict Compliance
The Court of Appeal reversed. Applying the framework for distinguishing mandatory from directory statutory requirements, the court concluded that Section 25903 of the regulations is directory. The governing test is substantial compliance, meaning actual compliance with the substance essential to every reasonable objective of the regulation. Under this standard, technical deviations that do not undermine the notice’s core purposes will not invalidate a Prop 65 action.
The court identified three core functions of the 60-day notice: enabling prosecutors to assess whether to bring a public enforcement action, giving the alleged violator an opportunity to cure, and defining the scope of the private party’s right to sue. Providing counsel’s contact information rather than a principal’s name satisfied all three objectives. Attaching an older but substantively accurate summary of the law likewise accomplished the provision’s purpose of giving the recipient general background on Proposition 65.
Importantly, the court distinguished its holding from cases involving complete failures of compliance, such as omitting the certificate of merit entirely or failing to attach any version of the required summary. Substantial compliance does not excuse wholesale omissions. It protects against dismissal for technical imperfections when the notice achieves its regulatory objectives.
What the Court Did Not Decide
The opinion leaves open where the line falls between a “technical imperfection” and a substantive deficiency. Whether a notice that fails to identify the chemical, the product, or the route of exposure could survive under substantial compliance remains unanswered. Those elements go to the core purpose of the notice, and a different outcome is likely where they are absent.
Why This Matters for Businesses Facing Prop 65 Claims
For defendants, the practical impact is immediate: technical notice challenges just became a weaker shield. Motions to dismiss based on minor defects in contact information, attachment versions, or formatting irregularities are unlikely to succeed after this opinion. Defense resources are better directed toward the merits, specifically whether the product actually exposes consumers to the listed chemical at actionable levels and whether the business qualifies for a safe harbor.
For companies issuing Prop 65 notices, the opinion is reassuring but not a license to be careless. The notice still has to work. It must identify the parties, the chemical, the product, the exposure route, and the timeframe with enough specificity to serve the statute’s enforcement purposes.
Practical Takeaways
For defendants: Recalibrate your notice-challenge strategy. If the defect you have identified is the version of an attachment or the job title of the contact person, that motion is now a long shot. Focus discovery and dispositive motions on exposure levels, warning adequacy, and safe harbor defenses.
For plaintiffs and enforcers: Substantial compliance is not zero compliance. The court was careful to distinguish cases where entire required elements were missing. Treat the notice as a checklist where every box is checked, even if the details are imperfect.
For all parties: Read the OEHHA rulemaking record. The court relied heavily on OEHHA’s Final Statement of Reasons, and the agency’s own language, that notice requirements are not intended to become “a trap for the unwary,” drove the result.
Bottom Line
Environmental Health Advocates v. Pancho Villa’s establishes that Proposition 65’s pre-suit notice requirements are directory, not mandatory. Substantial compliance is the standard. For businesses defending Prop 65 actions, the path to dismissal now runs through the merits of the alleged exposure, not the formatting of the notice.
Horst Legal Counsel represents businesses in civil litigation, regulatory compliance, and employment law matters throughout California. If your business has received a Proposition 65 notice or is facing a consumer product compliance challenge, contact us to discuss your options.