A California federal court has refused to dismiss a class action consolidated from nine lawsuits against PepsiCo, Inc. alleging that the company concealed its products’ content of 4-methylimidazole (4-MEI), a chemical listed as known to cause cancer or reproductive harm under the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Sciortino v. Pepsico, No. 14-0478 (N.D. Cal., order entered June 5, 2015). The lawsuits were filed after a January 2014 Consumer Reports test reportedly found that the caramel coloring in PepsiCo sodas contained 4-MEI at levels higher than the Prop. 65 safety threshold of 29 micrograms. Details of a similar lawsuit dismissed in March 2015 requesting medical monitoring appear in Issue 557 of this Update.

The court first discussed the notice requirements under Prop. 65, which require 60 days of notice of the alleged violation to government agencies to provide a “non-adversarial opportunity for public agencies to pursue investigation, settlement, and cure.” Two of the plaintiffs initially filed lawsuits alleging misrepresentation then later amended their complaints to assert Prop. 65 claims as well. PepsiCo argued that the strategy was “artful pleading designed to circumvent” the 60-day notice requirement of Prop. 65. The court disagreed on one complaint, denying PepsiCo’s motion to dismiss, and agreed on the other, granting the motion to dismiss the initial complaint’s Prop. 65 claim but noting that the dismissal “has little practical effect” because the Prop. 65 claim as a whole will continue.

The court then turned to PepsiCo’s argument that the plaintiffs misinterpret the chemical level limits of Prop. 65. The company asserted that exceeding the 29-microgram limit in a single 12-ounce can does not violate Prop. 65 because the statute calculates consumption on lifetime exposure patterns. The court disagreed, finding the complaint’s claim plausible because “the average daily exposure to a consumer who drinks more than one serving per day exceeds 29 micrograms.” It left the challenge to the calculation methodology to the summary judgment or trial stage.

The plaintiffs’ claims were also not preempted by federal law, the court found. PepsiCo argued that the caramel coloring that created 4-MEI as a byproduct was approved by the U.S. Food and Drug Administration (FDA), but the court found that this approval did not expressly or impliedly preempt Prop.65 enforcement. The claims of material misrepresentation could also proceed, the court found, because PepsiCo could not point to any provisions in federal law that would preempt them.

Finally, the court discussed PepsiCo’s argument that FDA had primary jurisdiction over the case because the agency “is currently considering whether more stringent guidelines are needed regarding exposure to 4-MeI” from the caramel coloring. The court disagreed that FDA’s deliberations amounted to primary jurisdiction, noting that the agency “appears to have stated that it is solely considering tightening its restrictions of 4-MeI.”