How Complexity of Prop 65 Rewrote Appellate Dicta
to Favor Enforcement
Champagne for the Geese as Fuel for a De Novo Limousine
The Beautifully Choreographed Geese Flying South, Into the Trap​
Trial courts are not the natural habitat of Prop 65 expertise. This is not criticism — it is just physics. Proposition 65 is a maze: a thousands-pages-deep regulation with forty years of active regulatory adjustments, where interpreting convoluted statutory mandates requires meticulous study of history, comparing "Initial Statements of Reasons" to "Final Statements of Reasons" — each some 300 pages — an exercise about as accessible as Egyptian hieroglyphics without the Rosetta Stone. Miss the historic context, or the thousand-page document that context was built on, or the actual historic application, and counsel is guaranteed to get it wrong — to say nothing of the overloaded judge.
Then comes the safe-harbor calculus, OEHHA guidance on Maximum Allowable Dose Levels, bioavailability adjustments, NHANES/FNDDS dietary exposure modeling, dose-response curves, the naturally occurring exception, and the synergy question no court has tried yet. Nobody understands this maze unless they live in it, lose weekends, vacations, and relationships to it, and occasionally threaten to name a houseplant after section 25821.
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So the trial judge looks to Big Law. Naturally. Big Law then arrives in spades: a beautifully choreographed geese-flying-south formation of three or four partners, one for each defendant, entourage marching in tow, towers of boxes rolling in — all to announce that the law is simple.​
Appellate Court, Recalling Champagne: Maybe Read the Brief Next Time​​
The problem is that Big Law partners are generalists too. They parachute in, confuse confidence with mastery, and begin building elegant bridges directly into walls. The court, relieved to have a Hermès-tie-grade guide through impossible terrain, adopts the theory. The enforcer's brief — screaming complexity and attaching Britannica-scale citations — gets the engagement of an annoying mosquito. Or at least that is the feeling.
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Everyone on the defense side pops champagne. What they have actually done is jointly construct a trap, admire the craftsmanship, and then step into it together — arm in arm, smiling — when the catastrophic statutory interpretation reaches an appellate panel, in a de novo limousine.
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This is a structural feature of the litigation rather than an occasional anomaly. A recent appellate opinion, recalling that champagne, noted that the trial court had responded to none of plaintiff's counsel's arguments:
"The ruling set forth the history of the case, then quoted the language of Regulation 25903, subdivision (b)(2)(A)(1), following which it concluded with [the finding]... That was it, the court saying nothing more about any of HLF’s many arguments."
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The Chemical Toxin Working Group Inc. [HLF] v. Best Naturals, Inc. (May 22, 2026, No. A170985) Cal.App.5th.
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The appellate translation: maybe read the brief next time.
How Defense Builds A Marble And Gold Ladder for Plaintiff ​
The most operationally interesting version of this dynamic involves a trial ruling that exclude the heart of Prop. 65- the 30 years of modern science on novel threshold theories — theories that have never appeared in any prior opinion, Prop 65 or otherwise, and that the agency which wrote the regulation reportedly did not recognize as a plausible reading of its own black-letter text.
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The paradox is that rulings of this kind can convert a case from several additional months of expert-dense trial into a clean question of statutory interpretation — purpose-built for de novo appellate review and potentially capable of strengthening enforcement across the entire field. Sometimes the defense builds these marble-and-gold ladders and then complains that enforcers are climbing it.​
Hostile Terrain Produces Useful Maps​
Multiple courts have designated Prop 65 enforcement actions complex under rule 3.400 in rapid succession, in some instances reversing their own initial non-complex determinations after reviewing the actual scope of the science involved.
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The view of the trial-court terrain held by experienced Prop 65 enforcers has some history behind it. The lesson, absorbed from those who defended the innocent in systems that offered no realistic prospect of winning at the trial level: let the court make all the mistakes it rushes to own. Keep building the record. That is why, sometimes, the enforcer almost feels uneasy when an adverse tentative gets reversed. It would have made such a convincing appeal.
Vintage Smear Rhetoric, Retired
The enforcer-as-bounty-hunter narrative has had a long run. It peaked in the early 2000s in cases that did not so much criticize plaintiff's counsel as take them outside and beat them with adjectives. The image — a shakedown artist in a consumer-protection costume, sending sixty-day notices like fishing lines into a lake stocked with settling defendants — lodged itself in judicial memory and defense counsel's opening paragraphs, where it has been repurposed ever since as a substitute for engaging the evidence.​
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A recent appellate decision, following PL's argument, has now moved to retire it:
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“Those early 2000’s cases said what they said, the especially colorful Consumer Defense Group case chastising counsel at length with criticism after criticism, to the point it set aside a settlement. But whatever the state of affairs in the early 2000’s, there is nothing in the record to support that attorneys are currently misusing or abusing the situation for the purpose of generating attorney fees—and thwarting possible settlement. Indeed, the evidence before us indicates the contrary."
The Chemical Toxin Working Group Inc. [HLF] v. Best Naturals, Inc. (May 22, 2026, No. A170985) Cal.App.5th..​
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The court is making a grown-up methodological point: vintage rhetoric requires vintage evidence. You do not get to carry a twenty-year-old insult into a modern case like an heirloom weapon, the smear does not travel.
Months of Wondering Whether Sleep is Sill Recognized by the Evidence Code​
Here is what the bounty-hunter narrative that the defense was pushing during oral argument concealed — and what has swayed the appellate court: what modern Prop 65 litigation actually involves.
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Before going to trial, PL team studied the published work of ninety-six scientific experts to identify the six best-cited and most credentialed in the world for the relevant disciplines. Examining two defense experts alone consumed two and a half months of trial. For two experts. For one chemical. For Phase I only.​
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This is not "send a notice, collect a check" litigation. This is several months of wondering whether sleep is still recognized by the Evidence Code.​
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The scale is documented in recent trial decisions to designate these cases as complex under California Rules of Court, rule 3.400. Some numbers:
Approximately ten scientific experts for Phase I alone — six for plaintiff, four for defense — each carrying a reliance set that has exceeded 5,000 pages of peer-reviewed literature. Multiply across ten experts and the documentary record clears 50,000 pages before a single motion in limine is filed. A single Phase I trial produced 1,320 trial exhibits. Plaintiff's trial team packed seven storage containers. Ten people in the court room on each side, anticipating 30 plus motions in limine for the entire trial.​
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The self-funding mechanism in Prop 65 — the fee-shifting that the defense bar calls the bounty — is precisely what makes this scale of enforcement possible. Without it, no small or mid-size firm could field ten experts, study ninety-six, and stand in a trial courtroom for two and a half months on a public-interest matter. The mechanism the defense converted into a smear is the mechanism that finances the only litigation capable of holding the line.
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The warning label should have been on the docket. The one that reads: this case is way more complex than it looks, and the record you make here will outlast the ruling.