Government Enforcer

A government enforcer under Proposition 65 is a state or local government authority authorised to bring enforcement actions for Proposition 65 violations. Government enforcers include: the California Attorney General (with primary authority); district attorneys of any California county; and city attorneys of cities with populations exceeding 750,000 (currently Los Angeles, San Diego, San Jose, and San Francisco). If a government enforcer initiates a Proposition 65 action within 60 days of receiving a 60-Day Notice of Violation from a private party, the private party is preempted from filing their own suit. Government enforcement actions are generally considered more credible and complex than private enforcement actions.

California Health & Safety Code §25249.7(c) and (d); §25249.7(e) (private enforcement preemption).

When a business receives a 60-Day Notice of Violation, it should be aware that both government and private enforcers can use it to bring suit. If the violation is serious (high-volume product with significant exposure), government enforcement is more likely. Government enforcement actions typically result in more structured consent judgments with comprehensive compliance obligations and public health funding. Businesses should engage with the AG’s office proactively in appropriate cases where a legitimate public health concern has been identified.