Judge Tosses Pepsi Cancer Class Action Lawsuit

Top Class Actions’s website and social media posts use affiliate links. If you make a purchase using such links, we may receive a commission, but it will not result in any additional charges to you. Please review our Affiliate Link Disclosure for more information.

A California federal judge tossed a class action lawsuit filed against PepsiCo Inc. alleging that the beverage contained a chemical that increases the risk for lung cancer.

U.S. District Judge Edward M. Chen dismissed the Pepsi class action lawsuit on March 4 with prejudice, meaning that the plaintiffs may not file another amended class action.

Judge Chen said that the Pepsi cancer class action lawsuit filed by plaintiffs Paul Riva and Danielle Ardagna does not allege an injury which merits constitutional standing to file a class action lawsuit — agreeing with Pepsi’s motion to dismiss.

Riva and Ardagna were asking that Pepsi be required to provide medical monitoring for customers because of the inclusion of the chemical 4-methylimidazole, which is an alleged carcinogen.

Judge Chen had said in January that the plaintiffs needed to 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.

He had explained that the issue is not whether or not lung cancer is serious, but that each person’s exposure to 4-methylimidazole is different. Judge Chen also said that when it comes to the effect of the chemical on bronchioloalveolar cancer that the toxicity level isn’t clear.

Riva and Ardagna had cited Consumer Reports, which had reported in 2013 that Pepsi, Diet Pepsi and Pepsi One beverage products contain any where from 29 to 39.5 micrograms of 4-methylimidazole per can.

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

Judge Chen said about the amended Pepsi class action lawsuit filed by the plaintiffs that “even considering the rodent studies, the levels allegedly consumed by the named plaintiffs herein would not appear to come close to the equivalent exposure in those studies.”

“The specific problem here is not the general value of animal studies but the lack of any factual content to show that 4-MeI causes bronchioloalveolar cancer in humans and the failure to plead that the levels of consumption alleged herein are sufficient to trigger credible risk of such cancer,” the California federal judge explained.

Citing a decision by the Ninth Circuit Court of Appeals in Potter v. Firestone Tire & Rubber Co., which Chen says sets the standard for how such cases are supposed to be handled, the plaintiffs were supposed to 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.

But the California federal judge said that the plaintiffs did not sufficiently make that case by not showing how much of the allegedly carcinogen Pepsi customers would have to be exposed to in order to develop the lung cancer, because the levels consumed by humans who drink Pepsi products isn’t anywhere close to how much the rodents consumed in the cited study.

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

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

The Pepsi Cancer 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.