Got a Prop 65 60-Day Notice? The Clock Runs Against the Plaintiff, and a Retailer's Five Days Come With a Catch

A notice that misses the regulation's requirements is not a notice. 25903(a) says no one may sue "in the public interest" pursuant to 25249.7(d) "except in compliance with all requirements of this section." Here is a check sheet built from those requirements, one line per item, in the box at the end of this step.

Line 10 carries the most weight. A notice alleging a failure to warn "shall include a Certificate of Merit" (11 CCR 3100), and where the notice "does not attach a copy of the Certificate of Merit meeting the requirements of subsection 3101(b), the noticing party has no authority to commence an action" (3103(a)). The certificate must say the signer consulted someone with relevant expertise who reviewed "facts, studies, or other data regarding the exposure," per 25249.7(d)(1). You won't get that data with the notice: it goes on the Attorney General's copy, which the Attorney General must keep "as confidential official information" under 25249.7(i).

Don't mark the notice defective for what it leaves out on purpose. 25903(b)(4) says a notice is not required to contain "The level of exposure to the chemical in question," the store or date of purchase, the evidence, or "the UPC number, SKU number, model or design number or stock number." A product named by type, with no SKU, can still meet line 6 if the description separates it from the products of yours the notice does not accuse.

The day count is in 25903(d): more than sixty days must have "elapsed from the date of service of the notice, as that date would be calculated for service of a document pursuant to" Code of Civil Procedure 1013. For mail, 1013(a) extends a period by "five calendar days" if both addresses are in California, "10 calendar days" if either is outside California but within the United States, and "20 calendar days" if either is outside the country. If the sixtieth day is a "holiday" under CCP 12a, which includes "all day on Saturdays" and, through CCP 135 and Government Code 6700, "Every Sunday," it moves to the next day that isn't one.

Adding the mail extension to day 60 before applying the holiday roll is my reading of 25903(d), not words the regulation spells out. For a fictional notice served Friday, November 6, 2026, a short script gives:

If the plaintiff e-served the Attorney General, 25903(c)(1)(D) says "time shall be computed as it would for service by mail within the State of California." The sections I read don't say which date governs when the Attorney General, the district attorneys and you were served on different days.

25249.7(k) bars suit if, "Within 14 days after service of the notice," the business corrects the violation, agrees to a civil penalty per facility or premises ($500 in the statute, adjusted every five years; $610 from 1 April 2024), and notifies the noticing party in writing, with the penalty paid within 30 days. It applies only to alcoholic beverages consumed on the premises, food or drink "prepared and sold on the alleged violator's premises" where the chemical was formed by cooking, environmental tobacco smoke on premises, and engine exhaust in a parking facility. A packaged product shipped to a customer fits none of them. When one does apply, the noticing party must serve "a notice of special compliance procedure and proof of compliance form" with the notice.

OEHHA's small-business guidance and its business FAQ tell retailers they have five business days after receiving a notice to warn or stop selling. That comes from 27 CCR 25600.2(f)(2), and the text is narrower than those summaries suggest.

Under 25600.2(e), a retail seller is responsible for the warning "only when" one of five circumstances exists: it sells the product under its own or an affiliate's brand, it knowingly introduced the chemical, it covered or altered a warning label, it received warning materials and didn't display them, or (e)(5) it has "actual knowledge" of the exposure and no manufacturer, producer, packager, importer, supplier or distributor both counts as a business under the Act and "Has designated an agent for service of process in California, or has a place of business in California."

The five days live in subsection (f), which opens "For purposes of subsection (e)(5)". Where the knowledge comes from a 60-day notice, the retailer "shall not be deemed to have actual knowledge" until "five business days after the retail seller receives the notice." So the grace period defines when knowledge starts for the no-reachable-supplier case. It does not cure a private-label product, an obscured label or warning materials you received and left in a drawer, because those make you responsible under (e)(1) to (e)(4) regardless of any notice.

Two other retailer duties are easy to miss:

• Name your suppliers on request. Under 25600.2(g), a retailer "shall promptly provide the name and contact information" for the manufacturer and others in the chain to anyone who served a 60-day notice about the product, on written request, "to the extent that this information is reasonably available."
• Check your supplier contracts. 25600.2(i) lets the businesses in a chain allocate warning responsibility in a written agreement that "shall supersede" subsections (b) through (e), so the contract may decide which of you is responsible for the warning.

The Act doesn't reach "any person employing fewer than 10 employees in his or her business" (25249.11(b)). 27 CCR 25102(h) says "all full-time and part-time employees on the date on which the discharge, release or exposure occurs must be counted." So count heads on the dates in the notice's time period, not today. That paragraph also says "ten or fewer" in one sentence and "ten or more" in the next, which doesn't match the statute's "fewer than 10." At exactly ten employees the two texts point different ways, and I found nothing in the regulation that explains it. OEHHA's guide adds that a small business may still owe compliance under its contracts, such as indemnification agreements.

During the period, 25249.7(c) lets the Attorney General, a district attorney or certain city attorneys and prosecutors bring the case themselves. The Attorney General's FAQ says it "decides whether to file suit on a case-by-case basis." If it believes the case lacks merit, the Attorney General "shall serve a letter to the noticing party and the alleged violator" saying so ((e)(1)(A)); the absence of a letter "shall not be construed as an endorsement" of the case.

The FAQ's own advice for a served business: "should consider locating defense counsel to help evaluate the matter," contact the noticing party for testing or data ("the plaintiff is not required to provide this information"), run lab testing or an exposure assessment, and if the claim may be valid, "cease sale of the product, instruct retail customers to stop selling the product, recall the product, and/or provide proper warnings." When you write to the noticing party, the FAQ notes it may ask for information "which you are not required to provide."

The Attorney General's Prop 65 page posts two permanent injunctions from the Eastern District of California:

• Titanium dioxide in cosmetics. Entered August 12, 2025 in Personal Care Products Council v. Bonta, it enjoins the state and "private citizen enforcers under California Health & Safety Code § 25249.7(d)" from "filing or prosecuting new lawsuits" on the cancer warning "as applied to Listed Titanium Dioxide (i.e., titanium dioxide that consists of airborne, unbound particles of respirable size) in cosmetics and personal care products."
• Acrylamide in food. Entered May 2, 2025 in California Chamber of Commerce v. Bonta, it enjoins enforcement of the dietary acrylamide warning "as against California Chamber of Commerce, its members, and all persons its represents." The page says the Ninth Circuit dismissed the state's appeal on May 29, 2026, on the Attorney General's own motion.

Whether the acrylamide order covers you depends on whether you are a Chamber member or someone it represents. The page tells litigants they "are responsible for tracking the progress of this case."