Does some food on California grocery store shelves merit judicial intervention to protect the health of consumers, or is Proposition 65 more useful as an avenue for recovery of outlandish damages or Nuclear Verdicts®?[i] This article addresses recent litigation regarding this proposition.

A Note About Ballot Measures in California

In California, certain measures may be placed on the ballot via the legislature, while other types of measures may be placed on the ballot by California voters.[ii] Any such measures are approved by a majority vote.[iii] Californians may have heard of one such measure—Proposition 65—via signs displayed on building walls or printed on food labels.

What Is Prop 65, and How is it Used?

Proposition 65—or, colloquially, “Prop 65”—is California’s Safe Drinking Water and Toxic Enforcement Act, which was approved in 1986 by a 63% margin.[iv] The purpose of this Act is protection against chemicals that are carcinogens and reproductive toxicants.[v] “Lead and lead compounds”, for example, are on Prop 65’s voluminous list of such chemicals.[vi]

According to Prop 65, a person may bring this sort of lawsuit in the public interest.[vii] Two requirements must be met in order to do so: first, a 60-day notice must be issued to the appropriate governmental authorities—including, but not limited to, the Attorney General, district attorney, and city attorney—and the party allegedly in violation; second, none of the aforementioned governmental authorities must have commenced an action in response to that notice.[viii]

Pending Litigation: Let’s See Prop 65 in Action!

In July 2025, Consumer Advocacy Group, Inc. (“CAG”) targeted grocer Bristol Farms for allegedly failing to put adequate warnings regarding lead content on two “Octopus in Olive Oil” products sold in Los Angeles stores.[ix] Specifically, CAG issued 60-day notices to Bristol Farms, Terramar Imports, the California Attorney General’s office, and city and county authorities in February 2025.[x] In July 2025, CAG filed a lawsuit against Bristol Farms regarding the same issue, seeking both a permanent injunction to require adequate warnings on the octopus product labels and potentially significant statutory damages—to the tune of $2,500 per day for each violation.[xi]

The Road Ahead: Next Procedural Steps and A Prognosis

As of the date this article was written, the case is in a nascent phase, and Bristol Farms has not yet filed a responsive pleading. The court set an initial case management conference for November 6, 2025, at the Stanley Mosk Courthouse in Los Angeles.[xii]

Key Takeaways

Accuracy in labeling is important; after all, the consumer needs truthful printed information on each product in order to make an informed decision. Trust and confidence is required on the part of all consumers that the products offered to them are safe for consumption. However, they may exercise varying amounts of judgment—both in terms of safety (e.g. checking expiration dates and examining the ingredient deck) and awareness (i.e. actively seeking information about the products). It is important for companies to stay abreast of current events on this front, ensuring labeling complies with all requirements, especially as labeling requirements may vary in different states.

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Sources

[i] Tyson, Nuclear Verdicts (1^st ed., Law Dog Publishing, LLC, 2020).

[ii] See California Secretary of State Website at https://www.sos.ca.gov/elections/ballot-measures.

[iii] Id.

[iv] See Office of Environmental Health Hazard Assessment (“OEHHA”) website at https://oehha.ca.gov/proposition-65/law/proposition-65-law-and-regulations.

[v] Cal. Health & Saf. Code, § 25249.5 et seq.

[vi]Id.; Cal. Code Regs., tit. 27, § 27001.

[vii] Cal. Health & Safe. Code, § 25249.7, subd. (d)(1)-(2).

[viii] Cal. Health & Safe. Code, § 25249.7, subd. (d)(1)-(2).

[ix] Complaint, Consumer Advocacy Group, Inc. v. Bristol Farms dba Lazy Acres Natural Market, No. 25STCV20065 (L.A. Super. Ct., filed July 8, 2025) at pp. 4-10.

[x] 60-Day Notice No. 2025-00663 (Cal. Dep’t of Justice, Feb. 27, 2025).

[xi] Consumer Advocacy Group v. Bristol Farms, Complaint, at pp. 1, 10; Cal. Health & Safe. Code, § 25249.7, subd. (b)(1).

[xii] Los Angeles Superior Court, [Civil Case Access for Case No. 25STCV20065] (https://www.lacourt.ca.gov/pages/lp/access-a-case/tp/find-case-information/cp/os-civil-case-access) (as of July 27, 2025).