A federal judge has tentatively approved a class action settlement that calls for PepsiCo to monitor levels of a carcinogen detected in its soft drinks with caramel coloring.
Lead plaintiff Mary Hall alleged the beverage giant failed to warn consumers that Pepsi, Diet Pepsi and Pepsi One contain levels of 4-methylimidazole (4-Mei), that exceed the Proposition 65 Safe Harbor Level.
The Proposition Safe Harbor limit for exposures to 4-MeI is 29 micrograms per day.
The compound is formed during the production of caramel coloring. California’s Office of Environmental Health Hazard Assessment (OEHHA) listed 4-MeI on its Proposition 65 list of carcinogens in 2011, based on a study conducted by the National Toxicology Program that determined that it causes lung tumors in laboratory animals.
Hall’s lawsuit, which consolidated eight separate cases filed in 2014, claims that Pepsi intentionally concealed that its drinks contain 4-MeI at levels above Proposition 65’s Safe Harbor Level.
Under the proposed settlement, Pepsi agreed to require its caramel coloring vendors to meet certain 4-MeI levels in products sold in the United States, to ensure that the carcinogen’s levels does not exceed 100 parts per billion—a level significantly lower than the Prop. 65 regulatory level.
Since levels of 4-MeI can fluctuate depending on the caramel coloring supplied the parties agreed that the average level of 4-MeI shall not exceed 81 ppb.
The parties also agree to implement the test protocol described in “Simultaneous Quantitation of 2-Acetyl-4-tetrahydroxybutylimidazole, 2- and 4-Methylimidazoles, and 5-Hydroxymethylfurfural in Beverages by Ultrahigh-Performance Liquid Chromatography-Tandem Mass Spectrometry” by Jinyuan Wang and William C. Schnute (60 J. Agric. Food Chem. 917-921 (2012) to test the reformulated products.
The new settlement expands the scope of the reformulation from California to nationwide and extends the period of relief from three years to five years.
The settlement does not call for any monetary compensation for class members, however the members are not precluded from pursuing monetary claims for damages, personal injury or wrongful death against Pepsi by participating in the settlement.
U.S. District Judge Edward Chen granted preliminary approval to the settlement on June 28.
Judge Chen emphasized “the settlement agreement does not attempt to limit future claims for injunctive relief; thus, if an individual is unsatisfied with 4-MeI limits required by the settlement agreement, they are not precluded from bringing a claim challenging those 4-MeI levels,” he wrote.
Class counsel, Pearson, Simon & Warshaw LLP will seek $500,000 in attorney fees during the final approval hearing scheduled on August 25.
The cases cited by this article are: Sciortino v. PepsiCo, Inc. (Case No. 14-cv-00478-EMC (N.D. Cal.)
PepsiCo was represented by Arnold & Porter LLP and Gibson Dunn & Crutcher LLP.