Beverage companies PepsiCo and Goya face a spate of class action lawsuits relating to the caramel coloring in their soda drinks.  In January, Consumer Reports, an independent product testing organization, released a report detailing its investigation of the amount of 4-methylimidazole (“4-MEI”), an impurity created during the manufacturing of caramel coloring, in various soft drinks, including Sprite, Dr. Pepper, 365 Everyday Value Dr. Snap, Brisk Iced Tea, A&W Root Beer, Pepsi, Diet Pepsi, Pepsi One and Malta Goya.  Since the report issued, Pepsi and Goya have been hit with a number of class action lawsuits alleging that 4-MEI is a carcinogen, and that Pepsi failed to warn consumers that its drinks contained excessive amounts of the chemical, which can expose consumers to substantial health risks.  

Specifically, the complaints allege that under California’s Proposition 65, products with more than 29 micrograms of 4-MEI must carry a health-warning label.  They cite Consumer Reports’ testing of various Pepsi and Goya soft drinks as finding that the drinks contained amounts of 4-MEI per can that exceed the Proposition 65 level, including Pepsi One at an average of 43.5 micrograms of 4-MEI per can and Malta Goya with an average of 316.2 micrograms per serving. 

Most of the complaints bring claims under California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act, although some also allege intentional and negligent misrepresentation.  The plaintiffs contend that they would not have purchased the soft drinks had they known the level of 4-MEI present, and seek relief ranging from an injunction preventing the sale of the beverages in California to unspecified damages.

Now that the Food and Drug Administration has announced that it plans to investigate 4-MEI, Pepsi and Goya could face even more suits.

The new wave of caramel coloring cases include Cortina v. PepsiCo Inc., Case No 3:14-cv-00168 (Jan. 23, 2014), and Cortina v. Goya Foods Inc., Case No. 3:14-cv-00169 (Jan. 23, 2014), in the Southern District of California; and Granados v. PepsiCo, Inc., 3:14-cv-01316 (Mar. 21, 2014), Ibuski v. PepsiCo, Inc., 4:14-cv-01724 (Mar. 18, 2014), Ree v. PepsiCo, Inc., 3:14-cv-01192 (Mar. 13, 2014), Hall v. PepsiCo, Inc., 3:14-cv-01099 (Mar. 7, 2014), Aourout v. PepsiCo, Inc., No. 3:14-01289 (Feb. 20, 2014), Langley v. PepsiCo, Inc., 3:14-cv-00478 (Feb. 14, 2014), and Sciortino v. PepsiCo, Inc., No. 3:14-cv-00478 (Jan. 31, 2014), in the Northern District of California.