While California’s Prop 65 chemical list from 1988 included “aflatoxins” as a carcinogen, it is only now being identified in a wave of alleged violations focused on certain food products. Prop 65, officially called the California Safe Drinking Water & Toxic Enforcement Act of 1986 and codified under the state’s Health and Safety statute, requires businesses to provide certain warnings before exposing individuals in California to any listed chemical that may cause cancer or reproductive harm.
Since May 2026, private enforcers issued more than 100 Prop 65 Notices of Violation (NOVs) targeting food companies for alleged consumer exposure to “aflatoxins,” with approximately three dozen of the notices also identifying “ochratoxin A” and/or “fumonisin B1.” The NOVs are focused on the following food products: figs, date rolls, roasted pepitas, peanut butter, almond butter, tortillas, corn meal, and raisins.
Aflatoxins are chemical toxins in the mycotoxin family that are produced by fungi and often encountered in feed crops such as corn, peanuts, cottonseed, and tree nuts. Although aflatoxins have been on the Prop 65 chemical list since 1988, the recent wave of NOVs are the first time that private enforcers have pursued such actions. The Office of Environmental Health Hazard Assessment (OEHHA) has not yet established a “Safe Harbor” level of exposure to aflatoxins to determine whether, and when, a Prop 65 consumer warning may be warranted.
Under Prop 65, unless a company has a direct exemption (i.e. small business of less than ten employees for federal preemption), the burden of proof automatically shifts to the defendant company to prove that either a warning would not be necessary or that compliant warnings were already provided to California consumers. Civil penalties under Prop 65 can be up to $2500 per violation per day (i.e., 1000 units sold into CA for the last year could generate $2,500,000 in civil penalties alone), and counsel for the “private enforcers” are also entitled to reasonable attorney’s fees.
Gordon Rees Scully Mansukhani’s Environmental & Toxic Tort and Food & Beverage teams anticipate that this is just the beginning of a new wave of Prop 65 enforcement actions targeting any company in the chain of distribution into California of certain products that may expose consumers to aflatoxins. Early testing and diligent compliance efforts are strongly recommended to manage the risk of being subject to one of these new NOVs.