This January, Consumer Reports, an independent product testing organization, released a report entitled “Caramel Color:  The health risk that may be in your soda” detailing its investigation of the presence of 4-methylimidazole (“4-MeI”), an impurity and potential carcinogen created during the manufacturing of caramel coloring, in various soft drinks.  Because 4-MeI is a potential carginogen, and identified as such under California’s Proposition 65 law, any food or beverage sold in the state that exposes consumers to more than 29 micrograms of 4-MeI per day is supposed to carry the Proposition 65 warning.  The investigation by Consumer Reports concluded that varying amounts of MeI were found in a variety of soft drinks, including Coca-Cola, Diet Coke, Dr. Pepper, Brisk Ice Tea, and A&W Root Beer; and found levels of 4-MeI that purportedly exceeded the Proposition 65 threshold in 365 EveryDay Value Dr. Snap, Pepsi, Diet Pepsi, Pepsi One and Malta Goya.  These latter products did not carry the Proposition 65 warning language.

In the wake of the release of the Consumer Reports study, PepsiCo and Goya (the maker of Malta Goya) were sued in several class actions.  The complaints variously allege that because these soft drinks contain more than 29 micrograms of 4-MeI, relying upon the Consumer Reports test results, under California’s Proposition 65, they must carry the statutory health-warning label and violated these (and other) laws by failing to do so.

Most of the complaints asserted claims under California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act, among others.  To satisfy the causation and reliance requirements of these laws, plaintiffs contended that they would not have purchased the soft drinks had they known the level of 4-MeI present, and they seek relief ranging from an injunction preventing the sale of the beverages in California to monetary damages and/or restitution.

According to Consumer Reports, PepsiCo questioned the applicability of the per day exposure threshold to a “per can exposure”, noting that the assumption data indicated the average consumption by soda drinkers was less than a can per day.

In its report, Consumer Reports indicated that the Food and Drug Administration is reviewing its own testing to determine whether regulatory actions would be appropriate.