Picture the transaction. A consumer in Los Angeles opens a delivery app — Instacart, DoorDash, Amazon Fresh, take your pick — scrolls past a product photograph, and taps "add to cart." A few minutes later, a gig worker arrives at a retail store, picks the item off the shelf, and brings it to the consumer's door. The consumer pays. The product, which may contain a chemical the State of California has listed as a known carcinogen or reproductive toxin, changes hands.

​

Somewhere inside the store, perhaps affixed near the relevant aisle, there is a placard. It says something to the effect that products in this section may expose you to chemicals known to the State of California to cause cancer and reproductive harm. The gig worker who collected the product walked past it. The consumer who bought the product never entered the store, never walked past anything, and received no warning of any kind before completing the purchase.

Under California's Safe Drinking Water and Toxic Enforcement Act — known universally as Proposition 65 — this is not a close regulatory question. It is a textbook violation. The argument that it is not says more about how well-funded defendants have learned to deploy paperwork than it does about the law.

 

The Warning That Reached the Wrong Person (And Why That's a $2,500-Per-Can Problem)

​

Proposition 65 requires that a warning reach the person being exposed to the listed chemical — before that exposure occurs. The implementing regulation, 27 California Code of Regulations section 25601, mandates that the warning be provided "in a manner reasonably calculated to make the warning message available to the individual prior to exposure." Section 25602(b), added specifically to address internet commerce, requires that for purchases made online, the warning appear on the product display page or be delivered electronically before the purchase is completed.

​

These are not aspirational guidelines. They are the minimum standard.

​

When a consumer buys any product through a third-party marketplace without ever entering the retail store, the in-store placard fails on its own terms. The consumer did not walk past it. The consumer could not have walked past it. The gig worker who did walk past it was not the purchaser and was not the person being exposed through consumption. A sign that the buyer never sees, in a store the buyer never visits, cannot reasonably be described as providing a warning to the buyer.

​

The California Court of Appeal addressed this directly in Center for Environmental Health v. Perrigo Co. (2023) 89 Cal.App.5th 1, rejecting the contention that any public communication — however attenuated, however remote from the actual transaction — could satisfy the Proposition 65 warning requirement. In Lee v. Amazon.com, Inc. (2022) 76 Cal.App.5th 200, the court went further and held that internet retailers bear their own independent warning obligation, separate from anything displayed or posted by a brick-and-mortar supplier. The company operating the online storefront cannot point at the store and say: someone put a sign up in there.

​

A warning law whose purpose is to ensure that consumers receive information before making an exposure decision is not satisfied by information delivered to a third party in a location the consumer never visits.

 

"This Aisle May Contain Chemicals" Is Not a Warning. It's a Shrug.

​

The in-store sign defense has a secondary failure that applies even when the consumer does walk into the store. Suppose, for the sake of argument, the consumer entered the store and stood directly in front of the placard. The sign states that products in the department "may expose you to chemicals known to the State of California to cause cancer."

Now: which product? Which chemical?

​

A consumer standing in a grocery aisle can see dozens of items — canned goods, fresh produce, packaged meats, condiments, supplements. The placard names none of them. It identifies no chemical. It says, in effect, that something somewhere in this general area might be concerning — a statement that conveys roughly the same actionable information as a sign reading "caution: vicinity."

​

Proposition 65 requires that warnings be "clear and reasonable" under Health and Safety Code section 25249.6. Clarity means the consumer understands what chemical is at issue and what product carries it. A generic departmental placard for a discrete identifiable chemical in a specific identifiable product does not clear that bar. The warning obscures rather than discloses.

There is a particular irony in the categorical-sign approach: the more products a retailer stocks in a given section, the less useful any single sign becomes. A store selling three items in a category might argue its placard functions as a meaningful proxy. A store selling three hundred items has constructed a warning that warns equally about everything, which is functionally equivalent to warning about nothing. The sign grows broader and less informative in direct proportion to the retailer's inventory.

 

The Regulation Says Both. Companies Are Filing Paperwork That Says One.

​

Companies that receive Proposition 65 notices sometimes respond by noting that they added a warning to their product packaging before the notice arrived. This observation is meant to suggest the claim is meritless. What it actually illustrates is a misreading of the regulatory structure.

​

The Office of Environmental Health Hazard Assessment's regulations — and the Final Statement of Reasons accompanying them — establish that for internet sales, compliance requires two distinct things: (a) a warning on the product itself, and (b) a warning on the product display page or through electronic delivery before the purchase is completed. These requirements are conjunctive, not alternative. Satisfying one does not discharge the other. OEHHA's own published FAQ answers the question explicitly: for internet sales, both are required.

​

A company that updates its label while leaving its online product listings unchanged has addressed half of a two-part obligation. The penalty exposure for violations that occurred during the period when neither was in place is not diminished by later partial remediation, and the exposure for violations that occurred after the packaging update — but before the online listing was corrected — remains live.

​

Defense counsel in these cases routinely argue that a label fix closes the matter. It does not. The regulations governing internet transactions were written with a specific understanding that the online purchase environment and the physical product occupy separate disclosure moments, and OEHHA chose to require both.

 

Congratulations: Your "We Already Complied" Defense Just Confessed to Prior Knowledge

​

There is a rhetorical trap that defendants in Proposition 65 cases walk into with some regularity. It works like this: counsel's pre-litigation letter states that the company began printing Proposition 65 warnings on its packaging before the 60-day notice was even sent. The implicit message is: your claim is baseless; we were already in compliance.

​

The problem is that this argument, if true, establishes something rather different. If the company was printing Prop 65 warnings on its products before the notice, it had already determined — presumably through some internal assessment process — that those products required a Proposition 65 warning. That means the absence of any compliant warning during the purchase period was not ignorance. It was a known gap in a known compliance obligation.

The voluntary act of adding a warning before being sued does not eliminate civil penalties for violations that already occurred. Penalties under Proposition 65 accrue on a per-day, per-violation basis for conduct that predates compliance. The significant-benefit analysis under Code of Civil Procedure section 1021.5 is conducted at the end of litigation, not in a letter from opposing counsel. A defendant who volunteers its own prior knowledge of the problem, while simultaneously arguing that the plaintiff has no valid claim, has not made the case go away. It has simply offered a candid admission in a more formal context.

 

They Cite a KFC Case from 2014 to Defend a 2025 Online Purchase. The Internet Has Questions.

​

Defense counsel in Proposition 65 cases tend to draw from a compact library of authority. One title that appears with some frequency is Physicians Committee for Responsible Medicine v. KFC Corp. (2014) 224 Cal.App.4th 166. The case involved a Proposition 65 certificate-of-merit requirement — specifically, whether the plaintiff had a reasonable basis to believe that warnings were absent at KFC restaurants. The court found the plaintiff did not, because there was no factual investigation into whether restaurant signs were actually posted.

​

The relevance of Physicians Committee to an internet purchase is, to be measured charitably, tenuous. The certificate-of-merit requirement asks whether a plaintiff had a factual basis for believing warnings were absent. For an online purchase, the question of warning absence is not factual in the way that restaurant signage is factual. A consumer who purchases a product through an internet marketplace and receives no warning before purchase — through the product display page, through electronic delivery, through any mechanism — has direct knowledge of the absence of an online warning, because the consumer was the one who did not receive it.

​

More pointedly: the regulations specifically governing internet transactions were added in 2016. Physicians Committee was decided in 2014. The regulatory architecture that the court was interpreting when it addressed restaurant signs did not contain the internet-specific provisions that now govern online sales. Citing a pre-digital-amendment case to defeat a claim about a digital purchase requires the reader to believe that OEHHA wrote the 2016 internet regulations for amusement and that the Court of Appeal in Perrigo and Lee v. Amazon was operating under some collective misapprehension.

​

This pattern — applying a pre-2016 case to a post-2016 regulatory scheme, as though the internet introduced no relevant complications — reflects a tendency in Proposition 65 defense practice to treat the statute's interpretive landscape as fixed at some earlier date, and to hope that the plaintiff has not noticed the subsequent amendments. Plaintiffs who have studied the regulations tend to notice.

 

They Did the Math on the Penalties. They Forgot to Count the Storage Containers.

​

The standard calculation in Proposition 65 enforcement run up to $2,500 per item sold per violation; the arithmetic produces a settlement value. It does not produce a litigation value.

The litigation value is something else entirely.

​

In a contested Proposition 65 case litigated to trial, the plaintiff's scientific bench alone — covering toxicology, epidemiology, biostatistics, NHANES dietary database analysis, exposure assessment, and risk modeling — runs to six experts. The defense typically fields four to five of its own. That is ten to twelve expert witnesses for Phase I alone, on scientific questions that require the court and jury to understand chemical bioavailability, the National Health and Nutrition Examination Survey's dietary database methodology, IARC classification criteria, and competing studies.

​

Phase I of the most recent such trial ran from February to April 2026 — two and a half months of proceedings covering the cross-examination of only two initial experts on two preliminary issues. Plaintiff's exhibit list for Phase I alone ran to 1,320 trial exhibits, transported in seven storage containers. Each trial team numbered ten people. Thirty or more motions in limine. A docket exceeding five hundred items. Ten thousand pages of scientific literature per expert.

​

The 60-day notice arrives and recipient's counsel performs the penalty arithmetic. That calculation stops at the courtroom door. The actual cost of contested Proposition 65 litigation — expert retention, deposition, preparation for trial testimony, exhibit production, motion practice, trial team staffing — can add up to measured in millions before a verdict is entered.

​

Companies that receive a 60-day notice and immediately characterize it as nuisance litigation have usually performed only the penalty arithmetic. They have not priced in the expert wars. They have not counted the storage containers.

 

The People's Law in California. The Most Expensive One to Ignore.

​

The underlying obligation under Proposition 65 is not complicated: tell people what is in the product before they decide to buy it. If you sell online, warn online. If the product contains a listed chemical, name the chemical. If you sell in a specific category, label the specific product.

​

The complexity arises entirely from the decision to resist that obligation. Once a company elects to argue that an in-store placard covers an internet sale, that a generic department sign covers a specific chemical in a specific product, that a label update satisfies an online disclosure requirement, that a pre-2016 restaurant case governs a 2025 digital transaction — the case has graduated from a disclosure dispute to a scientific litigation. The storage containers are loaded.

​

The gap between what companies think Proposition 65 enforcement costs and what it actually costs is not a secret. It is a choice about which arithmetic to perform. The companies that discover the error tend to discover it expensively.