Judge Questions Validity of Pepsi Cancer Class Action

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The plaintiffs behind a Pepsi class action lawsuit alleging that the soda beverage causes cancer have yet to offer any evidence of their claims, says a California federal judge.

Plaintiffs Paul Riva and Danielle Ardagna want Pepsi to be forced to provide medical monitoring to its customers because its beverages allegedly contain a chemical that causes a type of lung cancer.

However, U.S. District Judge Edward Chen has said that when it comes to medical-monitoring class action lawsuits, the lawsuit that has set the standard for how such cases are to be handled is Potter v. Firestone Tire & Rubber Co., which was decided by a California appellate court.

In the Firestone class action lawsuit, the court ruled that plaintiffs must provide evidence that the alleged carcinogen significantly increases the chances of serious disease. In addition, the testimony of medical experts should also be provided to help make that case, Judge Chen explained.

“Here, there’s not much dispute that lung cancer is serious, but the other factors are problematic,” the federal judge said, adding that the exposure levels of 4-methylimidazole can be different depending on the person.

In addition, when it comes to the effect of the chemical on bronchioloalveolar cancer the toxicity level isn’t clear, he said.

“This is a pretty thin claim, in terms of a causal relationship between [4-methylimidazole] and this form of cancer,” Judge Chen said.

“I have no idea whether the exposure level causes significant risks … and I don’t see any studies that have to do with humans,” he added.

Riva and Ardagna cited a study performed by the National Toxicology Program on rats, which showed that 4-methylimidazole results in tumors in their lungs after they were exposed to the chemical for two years.

They also cite a toxicologist for Consumer Reports, who specializes in food safety, and concluded that four micrograms of 4-methylimidazole poses an “unnecessary risk.”

After testing Pepsi, Diet Pepsi and Pepsi One, Consumer Reports reported in 2013 that those beverage products contain any where from 29 to 39.5 micrograms of 4-methylimidazole per can, Riva and Ardagna explain in their Pepsi class action lawsuit.

The chemical 4-methylimidazole is allegedly on the list of California’s Proposition 65 chemicals, which requires companies to supply “clear and reasonable warnings” about.

They allege in their Pepsi class action lawsuit that the beverage company failed to warn customers of the risks linked to the chemical, and now as a result should provide medical monitoring to customers.

In Pepsi’s motion to dismiss the class action lawsuit, the company said that the nine cancer causing chemical class action lawsuits filed against the company were based on “a misguided overreaction to that article” by Consumer Reports.

The plaintiffs are represented by Roy A. Katriel of the Katriel Law Firm and by Ralph B. Kalfayan of Krause Kalfayan Benink & Slavens LLP.

Pepsi is represented by Andrew Tulumello, Christopher Chorba, Sapna D. Pandya and Laren M. Blas of Gibson Dunn and by Trenton H. Norris and Sarah Esmaili o f Arnold & Porter LLP.

The Pepsi Class Action Lawsuit is Riva et al v. PepsiCo, Inc., Case No. 3:14-cv-02020, in the U.S. District Court for the Northern District of California.