According to a news source, the industry interests that lost their challenge to the listing of 4-MEI as a chemical known to California to cause cancer have filed an appeal in the Third District Court of Appeals. Cal. League of Food Processors v. OEHHA, No. C070406 (Cal. Ct. App., 3rd Dist., appeal filed February 10, 2012). The chemical is commonly found in foods such as soy sauce, roasted coffee and the caramel coloring added to colas and beer. California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) added the chemical to the Proposition 65 (Prop. 65) list in January 2011, and a California Superior Court rejected the challenge filed by the California League of Food Processors, American Beverage Association, Grocery Manufacturers Association, and National Coffee Association in November. Additional information about the court’s ruling appears in Issue 420 of this Update. The plaintiffs reportedly argue that appellate intervention is needed “before…
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A California resident has filed a putative class action in a California federal court against the companies that make a line of SoBe® beverages known as 0 Calories Lifewater®, alleging that the product labels and promotions are misleading. Hairston v. S. Beach Beverage Co., Inc., No. 12-1429 (C.D. Cal., filed February 21, 2012). According to the plaintiff, the companies label the product as “all natural” despite purported non-natural and synthetic ingredients, such as ascorbic acid, cyanocobalamin, calcium pantothenate, niacinamide, and pyridoxine hydrochloride, which are apparently listed on product labels as Vitamins C, B12, B5, B3, and B6, respectively. He claims that reasonable consumers “do not have the specialized knowledge necessary to identify ingredients in SoBe Beverages as being inconsistent with the ‘All Natural’ claims.” The plaintiff also alleges that the companies deceive consumers by using the names of fruits on the labels. For example, the “B-Energy Strawberry Apricot, does not…
California Assembly Member Das Williams (D-Santa Barbara) recently introduced a bill (A.B. 1746) that would restrict the sale of sports drinks from middle and high schools throughout the state. If enacted, the legislation would prohibit the sale of “electrolyte replacement beverages” during school hours as of July 1, 2013. “Sports drinks are an inappropriate option for California students,” said Harold Goldstein, executive director of the California Center for Public Health Advocacy. “They were designed for athletes who have been sweating for an hour or more, not for children as they walk across campus or eat their lunch.” See Press Release of Assembly Member Das Williams, February 21, 2012.
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has extended the comment period for several chemicals, including benzophenone, a chemical used in plastic packaging as a UV blocker, that the agency is considering adding to the list of chemicals known to the state to cause cancer (Prop. 65) under the Labor Code mechanism. Public comments are now requested by March 22, 2012. According to OEHHA, “[b]ecause these are ministerial listings, comments should be limited to whether the International Agency for Research on Cancer has identified the specific chemical or substance as a known or potential human or animal carcinogen.”
The Center for Environmental Health has filed a notice of violation under California’s Safe Drinking Water and Toxic Enforcement Act (Prop. 65) to inform the manufacturer and retailers of several carbonated soft drinks containing caramel coloring that it will file a citizen enforcement lawsuit against them for violating Prop. 65’s warning provision since January 7, 2012, with respect to 4-methylimidazole (4 MEI). According to the notice, “No clear and reasonable warning is provided with these products regarding the carcinogenic hazards associated with 4-MEI exposure.” The notice also states that the lawsuit will be filed unless each “alleged violator enters into a binding written agreement to remedy the violations alleged herein by: (1) recalling products already sold; (2) reformulating such products to eliminate the 4-MEI exposure or taking appropriate measures to otherwise comply with Proposition 65; and (3) paying an appropriate civil penalty based on the factors enumerated” in California’s Health…
A federal court in California has denied a motion for class certification filed by a plaintiff who alleged that Vital Pharmaceuticals, Inc. misled consumers by claiming their energy drinks, marketed under the brand name Redline®, were safe and effective for enhancing energy and promoting weight loss. Aaronson v. Vital Pharms., Inc., No. 09-1333 (S.D. Cal., decided February 3, 2012). The plaintiff allegedly became shaky and his heart raced when he consumed the product, so he claimed that the company failed to adequately inform consumers about its risks. According to the court, the plaintiff failed to establish typicality, adequacy of representation and predominance. As to typicality, he apparently admitted that he never read the product’s warning labels, thus subjecting him to “unique defenses that are not applicable to the class members who read the labels.” As to adequacy of representation, the court found, “The record confirms that Aaronson and/or his counsel have…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed adding two food and beverage flavorings, as well as a fungicide and an herbicide contaminant to the list of chemicals known to the state to cause cancer under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65).Comments are requested by April 10, 2012. The chemicals are beta-Myrcene and Pulegone, which are components of certain essential oils used to flavor foods and beverages and also used as a fragrance in cosmetics, soaps, detergents, and herbal medicines, and Isopyrazam, a fungicide used in Central and South America on bananas, and 3,3’,4,4’-Tetrachloroazo-benzene, a contaminant and degradation product of certain herbicides. OEHHA has proposed the action under the authoritative bodies listing mechanism, citing the National Toxicology Program and the U.S. Environmental Protection Agency as institutions that have found the chemicals to be carcinogens or “likely to be carcinogenic.”
California’s Office of Administrative Law has approved a no significant risk level for the chemical 4-Methylimidazole (4-MEI) proposed by California EPA’s Office of Environmental Health Hazard Assessment (OEHHA). Beginning February 8, 2012, no Proposition 65 warning will be required for exposures to 4-MEI at or below 29 micrograms per day. The action follows a December 2011 court determination that OEHHA complied with the law when it found that 4-MEI, a chemical present in many common foods and beverages, is a carcinogen known to the state to cause cancer. Used in the manufacture of various products such as pharmaceuticals, the chemical is a by-product of fermentation often found in soy sauce, roasted coffee and the caramel coloring added to colas and beer. Additional information about the court challenge and ruling appears in Issue 420 of this Update.
A group of environmentalists is reportedly seeking to qualify a voter initiative in California that would require special labels on foods containing genetically engineered (GE) ingredients. With 504,760 signatures needed by June 4, 2012, to be eligible for the November 6 ballot, the environmentalists claim that the Environmental Protection Agency and other agencies have not adequately regulated GE material. “After 20 years of biotech bullying and force-feeding unlabeled and hazardous genetically modified foods to animals and humans—aided and abetted by the Clinton, Bush, and Obama administrations—a critical mass of food and health activists have decided it’s time to move beyond small skirmishes and losing battles and go on the offensive,” asserted Ronnie Cummins, national director of the Organic Consumers Association, one of the organizations supporting the petition. Cummins evidently hopes the initiative will mimic California’s Proposition 65, a 1986 voter initiative that requires consumer warnings about exposures to chemicals known…
Putative class actions have been filed in New Jersey and California federal courts against Tropicana Products, Inc., alleging that the company misleads consumers by labeling and marketing its orange juice as “100% pure and natural,” when it actually “undergoes extensive processing which includes the addition of aromas and flavors.” Lynch v. Tropicana Prods., Inc., No. 11-07382 (D.N.J., filed December 19, 2011); Lewis v. Tropicana Prods., Inc., No. 12-00049 (E.D. Cal., filed January 6, 2012). Both plaintiffs seek to certify nationwide classes. The New Jersey plaintiff alleges unjust enrichment, breach of express warranty, violation of the New Jersey Consumer Fraud Act, and injunctive and declaratory relief. He requests compensatory, treble and punitive damages; prejudgment interest; restitution; injunctive relief; attorney’s fees; and expenses and costs of suit. The California plaintiff, who also seeks to certify a subclass of California consumers, alleges unjust enrichment; breach of express warranty; violation of the state Consumers…
