Pepsi Can’t Escape Cancer Claims in Class Action Lawsuits

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A California federal judge says PepsiCo can’t escape a class action lawsuit, alleging that Pepsi, Diet Pepsi and Pepsi One contain carcinogenic 4-methylimidazole at a level above what it is allowed under California’s Proposition 65.

Pepsi has faced nine class action lawsuits over the same allegations that the ingredient that creates the caramel coloring in Pepsi allegedly produces the carcinogenic ingredient 4-MeI. All nine Pepsi class action lawsuits have been consolidated under U.S. District Judge Edward Chen in a California federal court.

In 1986, California voters passed Proposition 65 into law, also known as the Safe Water Drinking Water and Toxic Enforcement Act of 1986, which says that “No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual.”

In 2011, California’s Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) “listed 4-MeI as a chemical known to the state to cause cancer.”

“The OEHHA determined that the ‘no significant risk level’ for 4-MeI is 29 micrograms per day,” the plaintiffs explain in their Pepsi class action lawsuits.

Consumer Reports did a study that it published in 2014 after performing tests on several soft drinks. The magazine reported that Pepsi beverage products contained more 4-MeI than other similar soft drinks — more than the 29 micrograms in a single can or bottle that the OEHHA said a person should consume in one day.

Plaintiffs who filed class action lawsuits against Pepsi over the 4-MeI in its products said that this was significant since most Pepsi drinkers drink more than a single can per day.

According to the consolidated class action lawsuit filed against Pepsi, plaintiffs cite annual reports Pepsi released from 2010-2013 in which it implied that it knew it had to adhere to Prop. 65. Pepsi allegedly said that it was working to comply with the regulatory requirements of Prop. 65, and that it had done so in California.

However, the Pepsi class action lawsuit says that the beverage company has not complied with California law, and it has in fact deceived its customers into thinking that Pepsi is a safe beverage product to drink.

Pepsi told Judge Chen that the consolidated class action should be tossed because the plaintiffs have misinterpreted Prop. 65 by claiming that the California law is violated if a beverage product contains more than 29 micrograms of 4-MeI.

However, the California federal judge sided with the plaintiffs and refused to dismiss the Pepsi class action lawsuit in his June 5 ruling.

“In particular, the CAC [Consolidated Amended Complaint] alleges that studies show that consumers who drink soda consume, on average, more than one 12-ounce serving per day,” Judge Chen explained.

“Assuming the facts alleged in the CAC to be true, a plausible inference that, where each serving of the Pepsi beverages contained more than 29 micrograms of 4-MeI, the average daily exposure to a consumer who drinks more than one serving per day exceeds 29 micrograms,” the judge wrote.

He added that the 4-MeI calculations may be challenged by Pepsi at the trial or summary judgement phase.

Judge Chen also disagreed with Pepsi’s assertion that including a Prop. 65 warning on Pepsi products would conflict with federal labeling requirements under the National Labeling and Education Act (NLEA).

“The NLEA carves out an exemption from its express preemption clause where warnings concerning the safety of food or component of food are at issue,” the federal judge wrote.

“The Proposition 65 warning and the cancer risks alleged in the CAC unambiguously implicate safety concerns. Thus, unlike cases in which no safety concerns are raised, the section 6(c)(2) exemption from preemption applies where, as here, such concerns are manifest,” he added.

The plaintiffs claim that “a material misstatement in the form of a public statement regarding steps that Pepsi had taken to conform its beverages to state regulations. In the light most favorable to plaintiffs, the misstatement or omissions that Pepsi made in its public statements and/or on its website is a deceptive claim regarding a consumer product,” Judge Chen wrote.

“Pepsi has pointed to no provision of the FDCA or FDA regulations that preempts claims based on such alleged misrepresentations, which are not alleged to be included on product labels or packaging,” he concluded.

The consolidated Pepsi Class Action Lawsuit is Stacy Sciortino, et el. v. PepsiCo, Inc. Case Nos. C-14-0478 which includes the following cases: C-14-0713-EMC; C-14-1099-EMC; C-14-1105-EMC; C-14-1192-EMC; C-14-1193-EMC; C-14-1316-EMC; C-14-2023-EMC; in the U.S. District Court for the Northern District of California.

UPDATE: On June 28, 2016, 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.