They Didn’t Know What They Were Eating

Picture a parent at a Ralphs or Kroger. They’re standing in the seafood section, trying to do the right thing. Mussels are affordable, high in protein, and widely promoted as a healthy choice. Nobody at the counter warned them. Nothing on the packaging told them. No sign in the aisle said: these farm-raised shellfish have been found to contain lead and cadmium.

Cadmium accumulates in the kidneys over years of low-level exposure. It doesn’t announce itself. You don’t feel it happening. But cadmium is a documented carcinogen and a reproductive toxin, meaning it can affect fertility, pregnancy outcomes, and fetal development. California didn’t list it under Proposition 65 as a curiosity. It listed it because the science is settled and the harm is real.

Lead is worse in some ways because most people already know it’s dangerous, and they trust that the foods they buy at mainstream grocery stores have been screened. Lead affects brain development in children. It impairs cognition. There is no safe level. Parents who fed these mussels to their kids while making what they believed was a responsible nutritional choice had no way of knowing, because the corporations responsible for informing them chose not to.

Proposition 65 exists precisely for this moment. California voters passed it in 1986, not as a technicality, but as a guarantee: before any business exposes you to a chemical known to cause cancer or reproductive harm, they must tell you. The law requires the state to maintain a list of those chemicals. It empowers private citizens to sue when businesses ignore that requirement, because the state can’t be everywhere at once and the people most at risk are often the people with the least power to protect themselves.

When Kroger’s lawyers showed up and argued that the lawsuit should be thrown out because the nonprofit’s outside counsel’s phone number appeared on the notice instead of an internal staffer’s number, that argument wasn’t neutral. It was a bet that a procedural fight would work where a substantive defense couldn’t. The contamination wasn’t disputed in court. The warning’s absence wasn’t disputed. What Kroger disputed was the lawsuit’s right to exist at all. For nearly two years, the question of whether customers deserved a warning never got a hearing. A California court of appeal finally said: that’s not how this law is supposed to work.

What the Record Actually Shows

“No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual.”

“[T]he proposed regulation is not intended to require that highly technical information be provided, to require disclosure of the evidence by which a violation will be proven, or to otherwise turn the notice requirement into a trap for the unwary.”

“Providing an attorney’s contact information does not undermine any of Proposition 65’s objectives and substantially complies with the notice requirement.”

“[T]he public always has a significant interest in seeing that legal strictures are properly enforced and thus, in a real sense, the public always derives a ‘benefit’ when illegal private or public conduct is rectified.”

What the Shelf Says vs. What the Lab Finds

The case documents a gap between the product experience Kroger and its affiliates offered consumers and the documented chemical reality of what those consumers were taking home.

• What was implied at point of sale: Farm-raised mussels sold through Kroger, Ralphs, Hughes Markets, and Maplebear were presented without any Proposition 65 chemical exposure warning, the legally required notice that a product contains chemicals known to the state to cause cancer or reproductive toxicity.
• What was documented in the notice: Testing identified cadmium, lead, and lead compounds in a specific brand of farm-raised mussels sold by defendants. All three are listed under Proposition 65 as chemicals known to cause developmental toxicity, reproductive toxicity, and cancer.
• What was implied by the retailers’ silence: The absence of a warning communicated, at minimum by omission, that no exposure to listed chemicals was occurring at a level requiring disclosure.
• What the law requires: Health and Safety Code section 25249.6 requires “clear and reasonable warning” before knowingly and intentionally exposing any individual to a Proposition 65-listed chemical. No such warning was provided, according to the complaint.

The Technicality Playbook: How Big Retail Tried to Use a Phone Number to Kill a Public Health Case

The Kroger legal team identified a narrow procedural provision and argued it was an absolute bar to the entire lawsuit, regardless of whether consumers were actually being poisoned.

• The provision targeted: California Code of Regulations, title 27, section 25903, subdivision (b)(2)(A)(1), requires that a Proposition 65 60-day notice include “the name, address, and telephone number of the noticing individual or a responsible individual within the noticing entity.” HLF’s notice provided contact information for its outside law firm, Poulsen Law, rather than a named internal officer.
• The argument: Kroger contended this rendered the notice fatally defective, stripping the court of authority to hear the case at all, and that no amount of substantive compliance with Proposition 65’s actual purpose could cure this technical omission.
• What the regulation actually says about its own purpose: OEHHA, the agency that wrote the regulation, stated in its own Final Statement of Reasons that the purpose of the contact information requirement is to “give the receiving parties an opportunity to contact the noticing party to resolve the issues.” Kroger could contact Poulsen Law. The purpose was served.
• The gap being exploited: Section 25903 uses mandatory-sounding language (“shall identify”), which Kroger argued required strict compliance. Two appellate courts rejected this argument in 2026, finding the provision is “directory,” not mandatory, meaning the purpose of the rule can be satisfied without literal compliance with every word.
• What the courts found: Both the Second and Fourth Districts held that providing outside counsel’s contact information satisfies the core objectives of the notice requirement. The attorney who signed the certificate of merit and who consulted with experts about the contamination is, in fact, better positioned to communicate about the alleged violation than an internal staff member who may have had no role in the testing.
• The broader implication: Had Kroger’s argument prevailed, any Proposition 65 enforcement notice that listed a law firm’s address instead of an individual officer’s address, in any case, would have been void. This would have created a categorical escape hatch from public health enforcement actions for any corporation whose lawyers identified the defect before 60 days elapsed.

Who Gets Hurt When Warnings Don’t Happen

Public Health

The contamination alleged here, and the missing warning, maps onto documented public health harms from cadmium and lead exposure through food.

• Cadmium is listed by California under Proposition 65 as a chemical known to cause cancer and developmental and reproductive toxicity. Chronic low-level dietary exposure, the kind that occurs without awareness over months or years, accumulates in kidney tissue and is associated with kidney disease, bone damage, and cancer risk. People who regularly ate these mussels believing them safe would have had no opportunity to make an informed choice about that risk.
• Lead is listed under Proposition 65 as a chemical known to cause developmental toxicity and reproductive toxicity, in addition to its well-documented effects on cognitive development in children. There is no established safe level of lead exposure. A consumer feeding farm-raised mussels to children or eating them during pregnancy, without any warning that lead had been detected, is making a health decision with missing information.
• Lead compounds (distinct from elemental lead) are also independently listed under Proposition 65, meaning the notice identified three separately listed chemicals, each triggering the warning requirement. The absence of any Prop 65 warning was not a marginal omission; it was a complete failure to disclose documented exposure to multiple state-listed carcinogens and reproductive toxins.
• The retailers in this case collectively operate thousands of locations across California. Ralphs and Kroger are among the largest grocery chains in the state. The scale of potential exposure from a contaminated product sold without warning at this distribution level is substantial.

Economic Inequality

Proposition 65 warnings function as a floor-level protection, disproportionately important for communities that cannot independently test food products or access premium alternatives.

• Farm-raised mussels are an affordable protein source. Consumers choosing them over more expensive proteins are often doing so specifically because of budget constraints. These buyers are least positioned to independently evaluate chemical contamination risk and most dependent on legally required disclosures to make informed choices.
• Mussels sold through delivery platforms like Maplebear (Instacart) reach consumers who may have even less access to the product’s physical packaging or any in-store signage that might, in some contexts, carry a warning. The online purchase pathway, with no point-of-sale warning mechanism, compounds the information gap.
• The legal strategy Kroger pursued, attempting to terminate a public health enforcement action on a procedural technicality, would have been effective precisely against the kind of nonprofit enforcement that fills the gap when state resources are insufficient. A victory for Kroger’s argument would have made private Prop 65 enforcement more expensive and legally precarious for organizations without the resources to ensure flawless compliance with every formatting detail of the 60-day notice regulation.

This Isn’t a Glitch. The System Gave Kroger Every Tool It Needed.

The outcome here was not an accident, and it was not the result of a rogue legal team. It was the predictable product of a legal environment that gives large corporations powerful procedural tools to resist public interest enforcement and the resources to use them.

• A nonprofit environmental health organization identified what it believed was a Proposition 65 violation, tested the product, consulted experts, prepared a detailed legal notice identifying the contamination, the chemicals, the retailers, the affected products, and the route of exposure, and still spent nearly four years in litigation without a single hearing on whether customers were being harmed. The case was almost killed on a contact-information technicality.
• The corporations named in the lawsuit are among the largest food retailers in the United States. Kroger, the parent company, reported revenues of over $150 billion in recent years. The organizations challenging them are resource-limited nonprofits. The asymmetry in litigation capacity is not incidental; it is structural.
• The legal argument Kroger advanced, that a phone number belonging to outside counsel rather than an internal officer voids the entire enforcement action, was specifically designed to be a threshold question, one that could be decided before the court ever examined the underlying contamination evidence. That strategy almost worked. The trial court agreed with Kroger. Two separate appellate courts were required to correct it.
• OEHHA’s own stated intent was that the notice regulation should not be “a trap for the unwary.” The court cited this language directly. Kroger’s legal strategy was precisely to spring that trap. This gap between regulatory intent and litigation reality reflects a system in which the tools designed to protect the public can be reliably turned against public-interest enforcers by parties with the legal sophistication and financial resources to identify formatting vulnerabilities.
• Proposition 65’s private enforcement mechanism exists because California’s public enforcement apparatus cannot cover every violation. The law deliberately empowers private citizens to act in the public interest. A rule of strict compliance with contact-information formatting, the outcome Kroger sought, would have created a predictable filter that screens out exactly these private enforcement actions while leaving corporate defendants with no accountability for the underlying conduct.

What Genuine Accountability Requires Here

The core structural failure this case exposes: California’s consumer chemical safety framework depends on private enforcement to function, but the procedural rules governing that enforcement create unnecessary vulnerability to dismissal on technical grounds that have nothing to do with the merits of the underlying public health claim. The following recommendations are editorial analysis, not findings of the source document.

Regulatory Track

• OEHHA should amend section 25903 to expressly state that providing contact information for the noticing party’s retained counsel satisfies the contact-information requirement, codifying what two appellate courts have now independently found to be the legal reality. The regulation’s silence on this point created four years of unnecessary litigation over a question the courts have now answered twice in 2026 alone.
• OEHHA should clarify that substantial compliance is the standard for all subdivisional requirements of section 25903 where the core purposes of notice (informing prosecuting agencies, giving alleged violators the opportunity to cure, and defining the scope of the action) are satisfied. A “trap for the unwary” warning that courts must cite as a defense against regulatory misuse is a sign that the regulation itself needs updating.
• The California Attorney General’s office should provide guidance to private Prop 65 enforcers on notice formatting to reduce the surface area for procedural dismissals. The asymmetry between corporate legal resources and nonprofit enforcement organizations makes clarity in the notice requirements a public health issue, not just a procedural one.

Legislative Track

• The Legislature should consider amending Health and Safety Code section 25249.7 to specify that a 60-day notice is sufficient if it identifies the alleged violation with specificity, names the alleged violator, and provides a means of contacting the noticing party, whether directly or through counsel. This would codify the substantial compliance standard at the statutory level, above the regulatory level where it can be contested case-by-case.
• Fee-shifting provisions should be strengthened to deter corporations from using procedural challenges as delay tactics when the underlying violation is serious and the notice clearly identifies the conduct at issue. A successful procedural challenge to a meritorious notice should not generate the same cost savings as defeating an unmeritorious claim on the merits.
• The Legislature should examine whether the 60-day waiting period, during which no public agency acted on either of HLF’s two notices, reflects an adequately resourced enforcement apparatus, or whether resource constraints in prosecuting agencies have created a de facto reliance on private enforcement that needs to be matched with procedural protections for private enforcers.

Corporate Governance Track

• Major grocery retailers selling seafood in California should implement systematic Proposition 65 testing protocols for farm-raised shellfish products before placing them on shelves, rather than relying on supplier certification alone. If testing reveals listed chemicals above safe harbor levels, the required warning should be applied as a matter of course, not litigated after the fact.
• Legal departments at major retailers should be evaluated on their compliance records under consumer safety law, not only on successful defense of litigation. A legal strategy that avoids a Proposition 65 warning obligation by killing enforcement actions on procedural grounds represents compliance failure, not compliance success, and should be treated as such in governance accountability frameworks.
• Board-level oversight of supply chain chemical safety, specifically the chemical profiles of private-label and branded seafood products sold under the retailer’s roof, should be a documented governance function at companies with significant exposure to Proposition 65-listed chemicals in their product mix.

What You Can Do Right Now

The people responsible for this case are The Kroger Company, Ralphs Grocery Company, Hughes Markets, Inc., and Maplebear Inc. (Instacart). The case is back in the Los Angeles Superior Court and has not yet been decided on the merits. The question of whether these retailers sold cadmium- and lead-contaminated mussels without required warnings remains pending.

Agencies With Authority Here

• California Attorney General’s Office: Primary public enforcer of Proposition 65. Has authority to file its own enforcement actions and was notified of both HLF’s 2022 and 2024 notices. Did not initiate a public enforcement action in response to either notice.
• OEHHA (Office of Environmental Health Hazard Assessment): The agency responsible for the Proposition 65 chemical list and the 60-day notice regulations. The court’s analysis points directly to regulatory language that needs updating. Public comment periods on regulatory amendments are open to any California resident.
• California Department of Public Health (CDPH): Has authority over food safety standards for seafood sold in California. Cadmium and lead contamination in commercially sold shellfish is within its oversight mandate.
• FTC and FDA: At the federal level, both agencies have roles in food safety and consumer disclosure for commercially sold seafood. Lead and cadmium in food supply chains are within the FDA’s food contaminant monitoring authority.

How to Apply Pressure

• Ask your grocery store directly whether the farm-raised mussels they sell have been tested for cadmium and lead, and what their Proposition 65 compliance protocol is for shellfish products. Document the response. Retailers respond to documented consumer pressure.
• Support the nonprofit enforcement ecosystem: Organizations like The Chemical Toxin Working Group do the testing and legal work that state agencies don’t always have the resources to pursue. If this kind of public interest enforcement matters to you, it needs funding and it needs people willing to share the findings.
• File public comments with OEHHA asking them to clarify section 25903 to prevent future procedural dismissals of substantively meritorious Proposition 65 actions. Two appellate courts have now told OEHHA their regulation needs clearer language. Public pressure on the agency to act matters.
• Track the case: Los Angeles Superior Court case number 23STCV16358 is now back at the trial level. Court records are public. When the merits hearing is scheduled, the findings will be public. Follow, share, and amplify what the court finds.