Pepsi Reaches Settlement in Carcinogen Class Action Lawsuit

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A federal judge has given the initial go-ahead to a proposed settlement of a Pepsi class action lawsuit over an allegedly cancer-causing component.

U.S. District Judge Edward M. Chen granted preliminary approval to the parties’ negotiated settlement. The settlement addresses plaintiffs’ allegations that PepsiCo Inc. products contain the chemical 4-Methylimidazole, or 4-MeI, in amounts that violate California consumer protection law and common law.

According to court documents, 4-MeI is formed in the process of creating the caramel color used in Pepsi products. The state of California recognizes 4-MeI as a known carcinogen.

Under terms of the proposed settlement, Pepsi must require its providers of caramel coloring to ensure that levels of 4-MeI stay below 100 parts per billion in products shipped for sale within the United States.

Briefings filed jointly by both parties explained to the court’s satisfaction that the 100 parts per billion limit would ensure 4-MeI levels would stay below the 29 micrograms per container considered safe for consumption.

Pepsi agreed to the same requirement when it settled a California state court action in 2015. The current proposed settlement expands the geographical scope of this requirement from just California to the entire U.S., and it extends the duration of the requirement from three years to five years.

The settlement provides only injunctive relief. No monetary payment will be required from Pepsi.

This Pepsi class action lawsuit, originally brought by plaintiff Mary Hall in 2014, is one of nine related legal actions consolidated by the court into a single process.

Plaintiffs filed their claims after Consumer Reports published test results in January 2014 that showed Pepsi products contained more than 29 micrograms of 4-MeI per container, the highest level considered safe for consumption.

The Pepsi class action lawsuit survived a motion for dismissal in June 2015. Pepsi argued the plaintiffs’ claims were based on a misinterpretation of California Proposition 65, and that the presence of more than 29 micrograms of 4-MeI in a product did not necessarily violate the law.

Judge Chen disagreed.

He noted that according to the plaintiffs’ allegations, the average soda drinker consumes more than one 12-ounce serving per day, which would result in daily 4-MeI exposure well over the 29 microgram maximum.

Last year, Judge Chen dismissed a related Pepsi class action lawsuit that demanded Pepsi pay for consumers’ medical monitoring based specifically on an alleged link between 4-MeI and an increased risk of lung cancer.

The current proposed settlement will apply to a nationwide settlement Class consisting of all individuals in the U.S. and its territories who purchased a Pepsi product at issue between Jan. 1, 2010 and June 28, 2016, the date of preliminary approval of the settlement.

The parties have agreed not to give formal notice of the settlement to Class Members but will publicize the settlement via other means.

The plaintiffs are represented by Daniel Warshaw of Pearson Simon & Warshaw LLP and by Marc Godino of Glancy Prongay & Murray LLP.

The Pepsi Carcinogen Class Action Lawsuit is Stacy Sciortino, et al. v. Pepsico Inc., Case No. 3:14-cv-00478, in the U.S. District Court for the Northern District of California.