Class Action Lawsuit Says Pepsi One Contains Cancer-Causing Chemical

A proposed class action lawsuit accusing PepsiCo Inc. of violating California labeling requirements was filed Tuesday in federal court. The plaintiffs accuse the company of failing to warn consumers that the caramel coloring in one of its soft drinks contains an ingredient that is considered a carcinogen under California law.

According to the class action lawsuit filed by plaintiff Kelly Ree, PepsiCo did not inform consumers that Pepsi One’s caramel coloring contains 4-methylimidazole (4-MeI), “which has been on California’s Proposition 65 List of ‘Chemicals Known to the State to Cause Cancer or Reproductive Toxicity’ since January 7, 2011.” Under California’s Proposition 65, products that contain more than 29 micrograms of the potentially carcinogenic 4-MeI must have a label that warns consumers about the ingredient.

The class action lawsuit cites a 2007 study by the federal government that concluded 4-MeI caused cancer in mice. In 2011, the International Agency for Research on Cancer found the chemical was “possibly carcinogenic to humans.” Although there is no federal limit for 4-MeI in food and beverages, as of Jan. 7, 2011, California has required manufacturers to include a cancer warning on all products sold in the state if it exposes consumers to more than 29 micrograms of 4-MeI per day.

Ree also points to a report published in Consumer Reports on February 10, which revealed that 12-ounce containers of Pepsi One had more than 29 micrograms of 4-MeI. Ree alleges that PepsiCo knew that the soft drink contained “excessive” levels of 4-MeI but marketed the product as being safe for consumption. She claims that she would not have purchased Pepsi One if she had known it contained levels of 4-MeI in excess of Proposition 65 guidelines.

“As a result of defendant’s material omissions in this regard, PepsiCo has been able to sell its Pepsi One product at a premium to the consuming public, and has been able to sell more units than it otherwise would,” the class action lawsuit alleges. “Moreover, it has done so without revealing that levels of 4-MeI are contained in its product and exceed California safety levels under Proposition 65.”

The Pepsi class action lawsuit asserts claims of unjust enrichment, breach of warranty, breach of contract, negligent and intentional misrepresentation, and violations of the Consumers Legal Remedies Act and the Unfair Competition Law. Ree seeks to represent all individuals in California who purchased one or more cans of Pepsi One since Jan. 7, 2012.

In January, PepsiCo and Goya Foods Inc. were hit with a similar class action lawsuit over the alleged 4-MeI content in Pepsi, Diet Pepsi, Pepsi One and Malta Goya.

Ree is represented by Lionel Z. Glancy, Michael M. Goldberg and Marc L. Godino of Glancy Binkow & Goldberg LLP.

The Pepsi One Chemical Class Action Lawsuit is Kelly Ree v. PepsiCo Inc., Case No. 8:14-cv-00328, in the U.S. District Court for the Central District of California.