Prop 65 Litigation Defense: When Fighting Is Worth the Expense
This article is general information about California Proposition 65, not legal advice, and does not create an attorney–client relationship. Consult qualified counsel about your specific facts.
Prop 65 litigation defense can be expensive, time-consuming, and high-stakes. But sometimes fighting is the right move. This article breaks down when to litigate, what the process looks like, and when the costs are worth it.
When to Defend a Prop 65 Case With Litigation
Under Prop 65, selling a product in California that contains a listed chemical without a warning is a violation. For every product sold in violation, the statute allows penalties of up to $2,500 per day, per exposure. If a product sells in high volumes, the penalty calculation can quickly skyrocket—and multiplying a large product volume by the potential penalty may suddenly make the expense of litigation a business necessity. A vigorous defense can be used to leverage a more favorable settlement; a successful and vigorous defense may reduce or eliminate liability entirely.
What Does Prop 65 Litigation Look Like?
Prop 65 litigation defense is complicated. To simplify, it helps to break expenses into two groups: attorney fees and expert fees.
Attorney Fees: The Lengthy Legal Process and Timelines
California motion practice is resource-intensive, requiring hundreds or even thousands of hours of attorney time. The resources are not only monetary—litigation also demands months or years of a food business’s attention and stress. Here is a real, down-and-dirty timeline for a typical Prop 65 case in California:
- 60-Day Notice filed: triggers the enforcement process (Cal. Health & Safety Code § 25249.7(d)(1)).
- Complaint filed: initiates the lawsuit (Cal. Code Civ. Proc. § 335.1).
- Answer due: within 30 days (Cal. Code Civ. Proc. § 412.20).
- Case Management Conference: within 180 days (CRC 3.722).
- Discovery phase: depositions, interrogatories, document production (Cal. Code Civ. Proc. §§ 2016.010 et seq.).
- Expert disclosures: typically 50 days before trial (Cal. Code Civ. Proc. § 2034.260).
- Motions in limine and summary judgment: heard in the weeks before trial (Cal. Code Civ. Proc. §§ 437c, 402).
- Trial: often 12–18 months after filing.
Expert Fees
You do not defend a Proposition 65 case in litigation without extensively deploying experts. Toxicologists, chemists, supply-chain analysts, testing labs, and regulatory specialists help establish that exposure levels fall below the No Significant Risk Level (NSRL) or Maximum Allowable Dose Level (MADL).
Expert testimony is even more critical when asserting the naturally-occurring chemical exemption—one of the most scientifically demanding and expensive strategies available to a defendant. 27 CCR § 25501(a) requires a manufacturer to prove that the listed chemical, typically a heavy metal like arsenic, lead, or cadmium, was not introduced or increased through any human activity. The standard is high and the burden of proof is on the manufacturer. To meet it, the manufacturer must evaluate the entire supply and production chain: experts analyze soil composition at the point of cultivation, test irrigation sources, examine fertilizers and pesticides for chemical and heavy-metal residues, and evaluate transport containers, storage vessels, and processing equipment for contamination risk. Even packaging materials must be tested to confirm that no migration or surface transfer occurred during distribution. Every input, every action, and every potential human contribution must be ruled out.
What Does It Cost? A Fight-vs-Settle Frame
The decision is ultimately quantitative. Use this frame as an experience-grounded anchor (every matter differs; these are order-of-magnitude planning figures, not a quote):
| Path | Typical cost driver | Order of magnitude |
|---|---|---|
| Early settlement | Negotiated penalty + plaintiff fees, scaled to CA unit sales | Often $10K–$40K for smaller volumes (see our settling guide) |
| Vigorous litigation through trial | Attorney motion practice + multiple experts over 12–18 months | Can reach the hundreds of thousands of dollars |
| Statutory penalty exposure (no defense) | $2,500/day × days × units sold in violation | Volume-dependent; can exceed either path above |
Making the Judgment Call
Every Prop 65 litigation strategy must begin with a clear-eyed assessment of cost, risk, and outcome. Experienced counsel brings more than legal knowledge—they offer context drawn from both settlement and trial outcomes, which is essential when helping manufacturers evaluate whether to fight or settle. The right strategy depends on the client’s risk tolerance, budget, and long-term goals. Litigation may cost hundreds of thousands of dollars, but so can a statutory penalty calculated at $2,500 per day, per unit sold. Our attorneys—including litigation partner John B. Diefenbach—help food manufacturers make that judgment call with clarity, precision, and deep experience in Prop 65 litigation strategy.
Demand letters have hard deadlines. If you are holding an active 60-day notice or complaint, call (800) 559-4628 for same-day intake before your answer date runs.
Recurring California Risk? Consider a Fractional GC Plan
If California exposure spans your whole product line, defending one case at a time is the expensive way to manage it. Our Fractional General Counsel plans fold ongoing monitoring, label review, and notice triage into one flat fee. See Service Plans →
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Jason Foscolo
Founder of The Food Law Firm — fractional general counsel for food & beverage businesses nationwide.
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