No Second Bite: Court Rules That Prop 65 Enforcers Blocked by Prior Consent Judgment

On July 31, the California Court of Appeal, Second District, affirmed the dismissal of a Proposition 65 enforcement action in Consumer Protection Group, LLC v. Signal Brands, LLC, holding that a prior consent judgment entered in a separate private enforcement action barred the subsequent suit under res judicata.

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Proposition 65 requires businesses to warn consumers before knowingly exposing them to listed chemicals. Private individuals may bring enforcement actions in the public interest after providing the required 60-day pre-suit notice to the alleged violator and the attorney general.

The plaintiff Consumer Protection Group, LLC (CPG) served pre-suit notices on Signal Brands, LLC, Ross Stores, Inc., and Guess?, Inc. in June 2022 alleging Proposition 65 violations arising from exposure to diisononyl phthalate (DINP) in a clutch sold by Guess?, Inc. and a wallet sold by Nine West. Separately, a different private enforcer — CA Citizen Protection Group, LLC (CCPG) — served its own notice regarding DINP exposure in Guess? cosmetic bags and “other similar bags,” filed suit, and entered into a consent judgment whose “Covered Products” included not only cosmetic bags but also the clutches and wallets at issue in CPG’s separate action. The court approved the consent judgment without objection from the attorney general.

When CPG filed its own complaint in April 2024, the trial court sustained the defendants’ demurrer, ruling CPG’s claims were barred by the res judicata effect of the CCPG consent judgment. The Court of Appeal affirmed.

The Court’s Holdings

The court’s key holdings were as follows.

  • Following Consumer Advocacy Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th 675, the court held CPG was in privity with CCPG because both brought their actions as private attorneys general representing the public interest, making the state the real party in interest.

  • Potential defects in a prior enforcer’s pre-suit notice — here, CCPG’s failure to identify the clutch and wallet and CPG’s inclusion of inappropriate contact information — have no bearing on the preclusive effect of the resulting consent judgment. The appellate court declined to analyze the trial court’s decision regarding whether the notices were, in fact, defective.

  • The court declined to import a contradictory privity framework from another California appellate decision requiring both adequate representation of a party’s interest and adequate notice to establish privity into the Proposition 65 context.

Key Takeaways for Consumer Products Companies Selling Goods in California

  • Consent Judgments Can Provide Broad Protection: A properly entered Proposition 65 consent judgment can bar subsequent suits by other private enforcers — even for products not expressly identified in the settling enforcer’s original pre-suit notice. Companies should negotiate settlement terms covering the full range of products at issue.

  • Private Enforcers Are in Privity: Proposition 65 private enforcers resolving claims as consent judgments act on behalf of the public interest and are deemed in privity for res judicata purposes. An early, comprehensive settlement with one enforcer may foreclose actions by others targeting the same products and chemicals.

  • Consent Judgment Finality Withstands Post-Hoc Criticism: Post-judgment objections — even from the attorney general — likely do not undermine a consent judgment’s preclusive effect. A judgment remains final and binding until a court vacates or modifies it.

  • Design Consent Judgments Strategically: Define “Covered Products” broadly to encompass all products sharing the same chemical exposure risk. A broader scope increases preclusive value but also extends compliance obligations — companies must ensure they can operationally meet reformulation or warning requirements across the full product range.

Contacts

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