Civil Penalty

The maximum civil penalty under Proposition 65 is  $2,500 per violation per day for knowing and intentional violations of the warning or discharge prohibition provisions (Health & Safety Code §25249.7(b)). Courts consider multiple factors in determining the appropriate penalty amount, including: the nature and extent of the violation; the number of violations; the economic benefit gained by the violator; the deterrent effect; and the presence of any good faith efforts to comply. Private enforcers retain 25% of any civil penalties recovered; 75% is paid to OEHHA. In practice, civil penalties in private enforcement settlements are often much lower than the maximum, with attorney’s fees and costs constituting the largest component of most settlements.

California Health & Safety Code §25249.7(b); OEHHA’s share: 75% (§25249.12); Cal. AG Annual Proposition 65 Settlement Summaries.

Businesses facing Proposition 65 enforcement should understand that the stated $2,500/day/violation maximum is a ceiling, not a floor. In many private enforcement settlements, actual civil penalties are relatively modest, while attorney’s fees often exceed the penalty. Prompt corrective action (product reformulation, warning implementation, or a safe harbour determination) after receipt of a 60-day notice can reduce civil penalty exposure. Courts give credit for good faith compliance efforts in determining final penalty amounts.