Certificate of Merit

A Certificate of Merit is a mandatory pre-filing requirement for private enforcers bringing Proposition 65 warning violation enforcement actions. Under Health & Safety Code §25249.7(d), a private enforcer must include with their 60-Day Notice of Violation a certificate stating that they have consulted with a person with relevant expertise who has reviewed facts, studies, or other data regarding the alleged exposure, and that based on this review there is a reasonable and meritorious case for bringing a Proposition 65 action. The factual information supporting the certificate must also be provided to the California Attorney General. Courts may sanction frivolous enforcement actions where the certificate is deemed insufficient.

California Health & Safety Code §25249.7(d); Title 11 CCR §§3100 et seq. (AG enforcement regulations); AB 3004 (2024, held on suspense file — proposed additional certificate requirements not enacted).

Businesses receiving a 60-Day Notice of Violation should examine the Certificate of Merit carefully. If the supporting factual information attached to the AG copy does not sufficiently support the claimed violation, the defendant may use this as part of their defence strategy. AB 3004, which would have required the AG to share its comments on the certificate with all parties (increasing transparency), was held in the California Assembly in 2024 and did not become law. Businesses should engage qualified legal counsel upon receipt of a 60-day notice to assess whether the certificate meets legal requirements.