Judge David S. Cunningham, Case 21STCV39713 2023-01-30 Tentative Ruling

Judge: David S. Cunningham, Case: 21STCV39713, Date: 2023-01-30 Tentative Ruling

Opposing Party: Council for Education and Research on Toxics (“CERT” or “Plaintiff”)

In light of the ruling on the general demurrer, Retailer Defendants’ demurrer is moot.

CERT “is a California public benefit corporation” headquartered in Los Angeles County. (First Amended Complaint (“FAC”), ¶ 1.)[1]

Retailer Defendants are “retailers of products called ‘air fryers’ that have been sold in California, including within Los Angeles County.” (Id. at ¶ 6.)

On 6/30/21, CERT “served a pre-suit notice of violation pursuant to Health & Safety Code section 25249.7, subdivision (d)(1) . . . .” (Demurrer, p. 26.) The notice asserted that Defendants “violated section 25249.6 by exposing individuals to acrylamide, ‘which is generated at high concentrations by their air fryers as intended and directed.’” (Ibid. [claiming “[e]xposures to acrylamide unavoidably occurred via ingestion when consumers ate plant-based and some other foods cooked in the entities’ air fryers”].)

On 10/27/21, CERT filed the initial complaint. It contained two causes of action. The first was for violation of Health and Safety Code section 25249.6 (see Complaint, ¶¶ 126-128), and the second was for declaratory relief. (See id. at ¶¶ 129-133.)

On 7/1/22, Retailer Defendants demurred, attacking CERT’s pre-suit notice and certificate of merit and the complaint’s allegations.

On 8/19/22, the Court sustained the demurrer with leave to amend. (See 8/19/22 Tentative Ruling Re: Retailer Demurrer, pp. 8-12.)

On 11/3/22, CERT filed the FAC. It alleges the same two causes of action. The central allegations state:

133. In early2021, the Consumer Council of Hong Kong tested 12 air fryer models and found that 6 of them posed safety hazards to consumers, including excessive temperature rise of some parts, insufficient insulation distance, inadequate grounding terminal, etc. The organization also assessed levels of acrylamide generated by air frying. Frozen thin French fries were air-fried according to the instruction of the user manual or the recipe provided by the retailer. The results showed that all models produced acrylamide at levels in the french fries ranging from 102 µg/kg to 7,038 µg/kg, and that half of the models yielded acrylamide concentrations in excess of the benchmark level established by the European Union of 500 µg/kg, with one sample exceeding the European Union benchmark concentration 16-fold! All of the air fryers generated acrylamide at levels that would result in exposure to consumers that greatly exceed the “safe harbor” level of 0.2 µg/day long ago established by the California Office of Environmental Health Hazard Assessment.

134. Following publication of the results of the Consumer Council study, the program Talking Point selected three foods commonly consumed in Asia – chicken wings, selar kuning (yellow-banded scad, the fish that often accompanies nasi lemak) and French fries -- to test acrylamide and fat levels from air frying. While the three food items had less saturated fats from air-frying than from deep-frying and there was little to no difference in trans fat levels between the air-fried and deep-fried versions of selaer kuning and French fries, the difference in acrylamide levels between the air-fried and deep-fried French fries was shocking. The deep-fried French fries contained less than 10 µg/kg, while the air-fried French fries contained a staggering 1,400 µg/kg.

135. These results are consistent with an earlier study that showed much greater acrylamide formation in frozen potato sticks specifically intended for oven cooking when air-fried in an Italian air fryer (273 µg/kg) compared with deep frying in oil (63 µg/kg). Giovanelli G, et al., “Comparative study of physico-chemical and sensory characteristics of French fries prepared from frozen potatoes using different cooking systems,” Eur. Food Res. Technol. 2017; 243:1619-1631.

136. Thus, air-fryer are machines that generate levels of acrylamide in foods that result in exposures to acrylamide that present significant risks of cancer to California consumers.

137. For at least the past several years, Defendants have engaged in the business of manufacturing, distributing, and/or selling air fryers to consumers in the State of California.

138. For at least the past several years, Defendants have exposed and continue to expose persons who consume foods that are air fried with air fryers manufactured, distributed, and sold by Defendants in California, including in the cities of Los Angeles, San Diego, San Francisco, and San Jose, to high levels of acrylamide, a carcinogenic chemical that is necessarily formed in foods that are air-fried in air fryers manufactured, distributed and sold in California by Defendants.

139. Defendants’ air fryers necessarily exposed persons in California to acrylamide in foods air-fried in their air fryers, because the air-fryers all operate at high temperatures that form acrylamide in foods that are air-fried in them and persons who consume such foods are necessarily exposed to acrylamide in the air-fried foods, because those foods are ingested by consumers as food.

140. It is not mere happenstance that persons who consume foods air fried in Defendants’ air fryers are exposed to acrylamide, because Defendants’ air fryers are designed to air fry foods at high temperatures which form acrylamide, and Defendants intend consumers to use their air fryers to air fry foods and to ingest the foods air-fried in Defendants’ machines. Thus, people who eat foods air-fried in Defendants’ air fryers are directly exposed by ingestion to acrylamide formed in Defendants’ air fryers from the intended, expected, and ordinary use of the machines.

141. Defendants marketed their air fryers as devices that make foods more crispy (and hence contain more acrylamide) than foods cooked in microwave ovens. For example, the box in which the Ninja Foodi XL Pro Air Oven is sold bears pictures of french fries, roasted potatoes, pizza, cookies – all foods that have high levels of acrylamide. Additionally, a 38-page recipe booklet included in the box contains recipes (with pictures) for cereal french toast, breakfast hash, herb & parmesan focaccia, cheesy hot fries, sweet potato casserole, maple-roasted root vegetables, hasselback loaded potatoes, cajun prime rib roast with baby yellow potatoes, bacon teriyake meatloaf & sweet potatoes, and red velvet cookies – all of which contain very high levels of acrylamide.

142. Acrylamide is a chemical known to the State of California to cause cancer and has been listed since January 1, 1990 as a carcinogen on the list of carcinogenic chemicals published by the Governor of the State of California at 27 California Code of Regulations § 27001.

143. Because acrylamide is listed in Proposition 65 as a carcinogen, pursuant to Health & Safety Code § 25249.6, Defendants were and are required to warn purchasers and their families that their air fryers expose them to acrylamide, a chemical known by the State to cause cancer, before exposing consumers to acrylamide in foods air-fried in their air fryers.

144. For the past several years, Defendants have violated and continue to violate Health & Safety Code § 25249.6 by exposing millions of individuals in California to acrylamide in foods cooked in their air fryers without first giving clear and reasonable warnings to said individuals that their air fryers exposed them to acrylamide, a chemical known by the State to cause cancer.

145. The violations of Health & Safety Code § 25249.6 are numerous and have occurred continuously and uninterrupted for the past several years and continuing to the present.

146. The timing of the violations is such that they occurred every moment that every individual within the State of California consumed foods that contain acrylamide formed in the process of air-frying said foods in Defendants’ air-fryers, without first receiving the required Proposition 65 warnings for the past several years and continuing to the present.

147. At all material times hereto, Defendants concealed from Californians and from Plaintiff that their air fryers generate extraordinarily high levels of acrylamide in air-frying foods and that individuals are exposed to high levels of acrylamide in foods cooked in Defendants’ air fryers.

148. At all material times hereto, Defendants fraudulently concealed from Plaintiff herein and from Californians exposed to acrylamide from their air fryers material facts concerning the toxic, neurotoxic, developmental, reproductive, and carcinogenic hazards to which their machines exposed individuals consuming foods air-fried in their machines.

149. Defendants’ concealment of the carcinogenic hazards generated by their air fryers was sufficiently complete that Plaintiff did not know, nor in the exercise of reasonable care could have known, that Defendants were knowingly and intentionally exposing Californians to carcinogenic acrylamide in violation of Proposition 65, until Plaintiff discovered such in mid-2021.

When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

“In 1986, the electorate passed Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986. It is now codified in Health and Safety Code sections 25249.5-25249.13.” (Consumer Advocay Group, Inc. v. Exxon Mobil Corp. (2002) 104 Cal.App.4^th 438, 440.)

“Proposition 65 was a ballot measure entitled, ‘Restrictions on Toxic Discharge into Drinking Water; Requirement of Notice of Persons' Exposure to Toxics.’ (Nicolle-Wagner v. Deukmejian (1991) 230 Cal.App.3d 652, 654-655.) “Its purpose was to identify chemicals known to cause cancer or birth defects, and to prevent exposure to those chemicals through our water supplies, in the workplace, and by other means.” (Ibid.)

CERT’s causes of action regard section 25249.6. The section “requires a ‘clear and reasonable’ warning before one may lawfully expose a person to chemicals which are known to cause cancer or reproductive toxicity[.]” (Ibid.)

The Office of Environmental Health Hazard Assessment (“OEHHA”) is “the lead agency . . . authorized to promulgate regulations to implement Proposition 65.” (American Chemistry Council v. OEHHA (2020) 55 Cal.App.5^th 1113, 1140.) “Section 25249.11 of [Proposition 65] requires [OEHHA] to minimize the burden on retail sellers of consumer products, to the extent practicable, when it adopts regulations concerning clear and reasonable warnings, except where the retail seller itself is responsible for introducing a listed chemical into the product.” (Cal. Code Regs., tit. 27, § 25600.2, subd. (a).) To advance this directive, OEHHA implemented Code of Regulations, title 27, section 25600.2(e), which states:

The retail seller is responsible for providing the warning required by Section 25249.6 of the Act for a consumer product exposure only when one or more of the following circumstances exist:

(1) The retail seller is selling the product under a brand or trademark that is owned or licensed by the retail seller or an affiliated entity;

(2) The retail seller has knowingly introduced a listed chemical into the product, or knowingly caused a listed chemical to be created in the product;

(3) The retail seller has covered, obscured or altered a warning label that has been affixed to the product pursuant to subsection (b);

(4) The retail seller has received a notice and warning materials for the exposure pursuant to subsections (b) and (c) and the retail seller has sold the product without conspicuously posting or displaying the warning; or

(5) The retail seller has actual knowledge of the potential consumer product exposure requiring the warning, and there is no manufacturer, producer, packager, importer, supplier, or distributor of the product who:

(A) Is a “person in the course of doing business” under Section 25249.11(b) of the Act, and

(B) Has designated an agent for service of process in California, or has a place of business in California.

Actions pursuant to [Proposition 65] may be brought by a person in the public interest if both of the following requirements are met:

(1) The private action is commenced more than 60 days from the date that the person has given notice of an alleged violation of Section 25249.5 or 25249.6 that is the subject of the private action to the Attorney General and the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator. If the notice alleges a violation of Section 25249.6, the notice of the alleged violation shall include a certificate of merit executed by the attorney for the noticing party, or by the noticing party, if the noticing party is not represented by an attorney. The certificate of merit shall state that the person executing the certificate has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person executing the certificate believes there is a reasonable and meritorious case for the private action. Factual information sufficient to establish the basis of the certificate of merit, including the information identified in paragraph (2) of subdivision (h), shall be attached to the certificate of merit that is served on the Attorney General.

(2) Neither the Attorney General, a district attorney, a city attorney, nor a prosecutor has commenced and is diligently prosecuting an action against the violation.

The requirements governing pre-suit notices are set forth in Code of Regulations, title 27, section 25903. Generally, the pre-suit notice must provide: “a specified attachment summarizing Proposition 65; description of the violation; the name of the noticing entity; the name of the alleged violator; the approximate time period for the violation; the name of each chemical involved in the alleged violation; and the route of exposure.” (Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2007) 150 Cal.App.4^th 953, 964.) Specifically, section 25903(b) states:

(1) General Information. Each notice shall include as an attachment a copy of “The Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65): A Summary” (see Appendix A) prepared by the lead agency. This attachment need not be included in the copies of notices sent to public enforcement agencies. A copy of this attachment may be obtained by writing to the Office of Environmental Health Hazard Assessment at P.O. Box 4010, Sacramento, CA 95812-4010.

(2) Description of Violation. A notice shall provide adequate information from which to allow the recipient to assess the nature of the alleged violation, as set forth in this paragraph. The provisions of this paragraph shall not be interpreted to require more than reasonably clear information, expressed in terms of common usage and understanding, on each of the indicated topics.

1. the name, address, and telephone number of the noticing individual or a responsible individual within the noticing entity and the name of the entity;

3. the approximate time period during which the violation is alleged to have occurred; and

(C) For all notices of violation of Section 25249.6 of the Act, the route of exposure by which exposure is alleged to occur (e.g., by inhalation, ingestion, dermal contact);

(D) For notices of violation of Section 25249.6 of the Act involving consumer product exposures, the name of the consumer product or service, or the specific type of consumer product or services, that cause the violation, with sufficient specificity to inform the recipients of the nature of the items allegedly sold in violation of the law and to distinguish those products or services from others sold or offered by the alleged violator for which no violation is alleged. The identification of a chemical pursuant to subsection (b)(2)(A)4. must be provided for each product or service identified in the notice.

(A) The specific retail outlet or time or date at which any product allegedly violating the Act was purchased;

(D) For products, the UPC number, SKU number, model or design number or stock number or other more specific identification of products;

(E) For geographic areas, the lot, block, or other legal description of the property in question.

* “the face of the complaint alleges compliance with the pre-suit notice and certificate of merit requirements” (8/19/22 Tentative Ruling Re: Retailer Demurrer, p. 8); and

* “the pre-suit notice is judicially noticeable” “under subdivision (h)” of Evidence Code section 452. (Ibid. at pp. 8, 9.)

Also, the Court rejected Retailer Defendants’ challenges to Plaintiff’s pre-suit notice and certificate of merit and Plaintiff’s arguments concerning regulation section 25600.2(e). (See id. at pp. 9-10. 11-12.)

The Court incorporates the 8/1922 order. Those rulings stand, and the Court declines to reconsider them.

The reason the Court sustained the demurrer to the initial complaint was because Plaintiff failed to “identify the [section 25600.2(e)] warning scenario(s)” that allegedly apply to Retailer Defendants.” (Id. at p. 11.)

Does the FAC fix the defect? Should Retailer Defendants’ demurrer to the FAC be sustained?

Ultimately, it is unnecessary to answer these questions. As explained in the tentative ruling on the general demurrer, Plaintiff’s causes of action lack merit under Environmental Health Advocates, Inc. v. Sream, Inc. (2022) 83 Cal.App.5^th 721 (“Sream”), and Plaintiff fails to show a basis for leave to amend. The general demurrer was filed on behalf of all Defendants, including Retailer Defendants, and resolves the claims against all of them. In effect, the additional issues raised in Retailer Defendants’ demurrer are moot and do not need to be decided.

The FAC alleges that section 25600.2(e)(2) requires Retailer Defendants to provide a Proposition 65 warning because they “knowingly caused acrylamide, a listed chemical, to be created in their” air fryers. (FAC, ¶ 115.)

Section 25600.2(e)(2) states that a “retail seller is responsible for providing” a warning “only when one or more of the following circumstances existed: . . . (2) The retail seller has knowingly introduced a listed chemical into the product, or knowingly caused a listed chemical to be created in the product[.]” (Cal. Code Regs., tit. 27, § 25600.2, subd. (e)(2).)

Retailer Defendants contend they do not introduce or create acrylamide given that acrylamide generates during the cooking process, after Retailer Defendants sell the air fryers to consumers. (See Retailer Demurrer, pp. 19-22; see also Reply, pp. 7-9.)

Plaintiff contends paragraph 115 complies with section 25600.2(e)(2). (See Opposition, pp. 13-14.)

115. Pursuant to 27 C.C.R. § 25600.2(e)(2), all Retail Sellers of air fryers were responsible for providing the cancer warning required by Health & Safety Code § 25249.6 because they all knowingly caused a listed chemical to be created in their products for the following reasons: (1) Air fryers are not made of acrylamide and do not contain acrylamide; (2) Raw foods that are air fried in air fryers do not contain acrylamide; (3) acrylamide is created in air fryers, inter alia, when raw foods containing asparagine and reducing sugars are air-fried in air fryers. Thus, all Retail Sellers of air fryers knowingly caused acrylamide, a listed chemical, to be created in their products.

(FAC, ¶ 115, emphasis added.) The italicized words demonstrate that acrylamide is not a component of the air fryers and is only created when customers use the air fryers to cook certain foods. Such creation happens after the air fryers are sold and leave Retailer Defendants’ possession and control. Retailer Defendants do not introduce acrylamide into the air fryers or create it, so Plaintiff fails to allege a claim.

Moreover, Paragraph 115 is inadequate under Sream because it alleges indirect exposures instead of direct exposures.

The FAC states that Retailer Defendants were “responsible for providing” a warning pursuant to section 25600.2(e)(5) because:

* “(1) they had actual knowledge of the actual or potential exposure of consumers to acrylamide from use of the air fryers as intended which required the warning” (Id. at ¶ 116); and

* “(2) there is no manufacturer, producer, packager, importer, supplier, or distributor of the air fryers who (A) is a ‘person in the course of doing business’ under Section 2524911(b) of the Act, and (B) has designated an agent for service of process in California, or has a place of business in California[.]” (Ibid.)

The retail seller is responsible for the warning required by Section 25249.6 of the Act for a consumer product only when one or more of the following circumstances exist: . . . (5) The retail seller has actual knowledge of the potential consumer product exposure requiring the warning, and there is no manufacturer, producer, packager, importer, supplier, or distributor of the product who: (A) Is a “person in the course of doing business” under Section 25249.11(b) of the Act, and (B) Has designated an agent for service of process in California, or has a place of business in California.

While the FAC alleges the language of subsection (e)(5) in conclusory fashion as to all of the Retailer Defendants [citation], plaintiff’s allegations on this issue as to each Retailer Defendant are far less sweeping. In paragraphs 117–131 of the FAC, plaintiff alleges that each retail seller sold air fryers “manufactured by the following companies, none of which is a [NonExempt California Supplier].” [Citation.] At best, plaintiff has alleged that several entities have “manufactured” air fryers that each Retailer Defendant sold. But plaintiff has not alleged, for each Retailer Defendant, that there is no producer, packager, importer, supplier, or distributor” of each air fryer who is a person in the course of doing business with a California location or agent for service of process, as subsection (e)(5) requires.

Further, it appears that plaintiff has simply regurgitated a list of manufacturers for each Retailer Defendant and its allegations are contradictory to other allegations in the complaint, and not made in good faith. For example, plaintiff alleges that defendant Breville USA Inc. is a California corporation [citation] and is a person in the course of doing business. [Citation.] Yet, Breville is also alleged to be a manufacturer of air fryers sold by Macy’s, for which plaintiff alleges Macy’s is obligated to provide warnings pursuant to subsection (e)(5). [Citation.] Indeed, this is true of many of the defendants who are not alleged to be retail sellers of other companies’ air fryers in paragraph 113. Clearly, plaintiff’s allegations are fatally inconsistent. Is Macy’s required to provide warnings for Breville air fryers because Breville is not a person in the course of doing business with a California location or agent for service of process? Or is Macy’s not required to provide warnings for Breville air fryers because Breville is a California corporation that is not exempt? “While a plaintiff can plead inconsistent causes of action, a plaintiff cannot ‘blow hot and cold as to the facts positively stated.’” [Citation.]

(Retailer Demurrer, pp. 22-23, emphasis in original, footnotes omitted; see also Reply, pp. 9-10.)

Plaintiff claims paragraph 116 establishes “Retailer Seller liability” under section 25600.2(e)(5). (Opposition, p. 14.)

Substantively, the Court agrees with Retailer Defendants. Paragraph 116 alleges:

116. Plaintiff is informed and believes and thereon alleges that, pursuant to 27 C.C.R. § 25600.2(e)(5), the following Retail Sellers of air fryers were also responsible for providing the cancer warning required by Health & Safety Code § 25249.6, because (1) they had actual knowledge of the actual or potential exposure of consumers to acrylamide from use of the air fryers as intended which required the warning, and (2) there is no manufacturer, producer, packager, importer, supplier, or distributor of the air fryers who (A) is a “person in the course of doing business” under Section 2524911(b) of the Act, and (B) has designated an agent for service of process in California, or has a place of business in California:

(FAC, ¶ 116.) It is a conclusory paragraph, and it is contradicted by other paragraphs. Retailer Defendants’ briefs highlight multiple examples of retailers selling air fryers that were/are manufactured by either California companies or companies doing business in California. (See Retailer Demurrer, pp. 22-24; see also Reply, pp. 9-10; FAC, ¶¶ 7-80, 117-131.) The examples appear to render the FAC overbroad and section 25600.2(e)(5) unsatisfied as to some Retailer Defendants.

Procedurally, Retailer Defendants’ argument amounts to an improper partial demurrer. A motion to strike is needed to separate – and remove – the non-compliant examples from the compliant ones.

The same is true of Retailer Defendants’ last argument. The FAC alleges that all Defendants failed and continue to fail to provide Proposition 65 warnings. (See FAC, ¶ 144.) Retailer Defendants contend the FAC is insufficient because:

* “many of the companies identified for each of the Retailer Defendants are not defendants in the case” (Retailer Demurrer, p. 24);

* there is no liability “if those manufacturers or others in the supply chain provided a warning” (ibid.); and

* the FAC fails to “plead that no warnings were provided for the air fryers sold by the Retailer Defendants that were manufactured by companies that are not defendants in this case[.]” (Id. at p. 25; see also id. at pp. 26-27 [discussing Physicians Committee for Responsible Medicine v. KFC Corp. (2014) 224 Cal.App.4^th 166 (“Physicians Committee”)]; Reply, pp. 11-14.)[2]

While the contention seems to have substantive merit, it constitutes an improper partial demurrer since it only applies to some Retailer Defendants.

[1] According to the FAC:

3. CERT’s charitable purposes are education and research regarding toxic substances. Throughout its history CERT has funded research and education regarding toxic substances, especially carcinogens in food, primarily funding education and research grants to the University of California researchers and students and nonprofit organizations such as the Green Science Policy Institute.

4. CERT has long been at the forefront of protecting California consumers from the carcinogenic hazard of acrylamide in the human diet. CERT filed the first case to enforce Proposition 65 regarding acrylamide in french fries in 2002 - the very year that the carcinogen and neurotoxin known as acrylamide was first reported to be present in cooked foods. CERT co-litigated the next case regarding acrylamide in potato chips with the California Attorney General. Those cases were both successful and conferred substantial benefits to California consumers. In the former case, french fry manufacturers agreed to provide legally required cancer hazard warnings and in the latter case, potato chip manufacturers reduced acrylamide levels in potato chips in lieu of warning, which is, of course, the best result for public health.

5. Since 2010 CERT has been litigating a case against the coffee industry regarding acrylamide in coffee (CERT v. Starbucks, et al., Los Angeles Superior Court Case No. BC 435759), with the goal of persuading companies that produce coffee (i.e. coffee roasters) to reduce acrylamide levels in coffee, which is the largest source of acrylamide in the adult diet.

(Id. at ¶¶ 3-5, underlined case name added.)

[2] In Physicians Committee, the trial court sustained the defendants’ demurrers, and the Court of Appeal affirmed. The Court of Appeal found the plaintiff’s pre-suit notices and certificates of merit defective because, at the time of executing the certificates, the plaintiff did not know what warning signs had been posted by the defendants or how they had been posted. The plaintiff “did not have the required information to support its notice and its filing of the lawsuit.” (Physicians Committee, supra, 224 Cal.App.4^th at 180; see also id. at 181-183.)

Opposing Party: Council for Education and Research on Toxics (“CERT” or “Plaintiff”)

Defendants’ demurrer is sustained. The issue of leave to amend will be decided at the hearing.

CERT “is a California public benefit corporation” headquartered in Los Angeles County. (First Amended Complaint (“FAC”), ¶ 1.)[1]

Defendants are “manufacturers, distributors, or retailers of products called ‘air fryers’ that have been sold in California, including within Los Angeles County.” (Id. at ¶ 6.)

On 7/1/22, Defendants demurred, challenging both causes of action on the ground that the complaint lacked “sufficient facts[.]” (Notice of Demurrer to Complaint, p. 8; see also Demurrer to Complaint, p. 14.)

On 8/19/22, the Court overruled the demurrer. (See 8/19/22 Tentative Ruling Re: General Demurrer, pp. 5-12.)

On 11/3/22, CERT filed the FAC. It alleges the same two causes of action. The central allegations state:

136. Thus, air-fryer are machines that generate levels of acrylamide in foods that result in exposures to acrylamide that present significant risks of cancer to California consumers.

137. For at least the past several years, Defendants have engaged in the business of manufacturing, distributing, and/or selling air fryers to consumers in the State of California.

145. The violations of Health & Safety Code § 25249.6 are numerous and have occurred continuously and uninterrupted for the past several years and continuing to the present.

At issue is Defendants’ demurrer to the FAC. Defendants argue that the causes of action lack merit under a new appellate decision called Environmental Health Advocates, Inc. v. Sream, Inc. (2022) 83 Cal.App.5^th 721 (“Sream”).

“Proposition 65 was a ballot measure entitled, ‘Restrictions on Toxic Discharge into Drinking Water; Requirement of Notice of Persons' Exposure to Toxics.’ Its purpose was to identify chemicals known to cause cancer or birth defects, and to prevent exposure to those chemicals through our water supplies, in the workplace, and by other means.” (Nicolle-Wagner v. Deukmejian (1991) 230 Cal.App.3d 652, 654-655.)

Plaintiff’s causes of action regard section 25249.6. The section “requires a ‘clear and reasonable’ warning before one may lawfully expose a person to chemicals which are known to cause cancer or reproductive toxicity[.]” (Ibid.)

The Court of Appeal decided Sream a little over a month after this Court overruled Defendants’ demurrer to the initial complaint.

The question here is whether Sream compels a different result. The answer is yes.[2]

In Sream, a health advocacy group named Environmental Health Advocates, Inc. (“EHA”) sued Sream under Proposition 65 for failing to warn that “its water pipe products exposed consumers to marijuana smoke[.]” (Sream, supra, 83 Cal.App.5^th at 725.)[3]

“The trial court granted Sream’s motion for judgment on the pleadings, finding EHA had not alleged that Sream’s water pipes require marijuana to function or can only be used with marijuana”:

Plaintiff does not allege that Defendant's ‘bong/water pipe products’ that are the subject of this action contain any chemical that causes cancer or reproductive toxicity or that they necessarily emanate any such chemical. Rather, Plaintiff alleges that Defendant's products, if used with marijuana, produce marijuana smoke, which is a carcinogen regulated by Proposition 65. Plaintiff does not allege that the Defendant's products can only be used with marijuana, or that their use with other substances emanates any carcinogen subject to Proposition 65.

The trial court also noted: “Plaintiff cites no case holding that a product that does not contain any chemical causing cancer or reproductive toxicity is subject to Proposition 65 merely because it could potentially be used with a substance that can be carcinogenic.” (Id. at 728.) “It found EHA’s allegation — that it was ‘reasonably foreseeable’ consumers may be exposed to marijuana, depending on how they choose to use a water pipe — insufficient to subject manufacturers or distributors of such products to Proposition 65 requirements.” (Ibid.) “The trial court determined that, under the facts as alleged by EHA, Sream’s products were not subject to Proposition 65 and dismissed the action with prejudice.” (Ibid.)

On appeal, “[t]he key . . . statutory interpretation” question was “whether Sream’s water pipe products ‘expose’ consumers to marijuana smoke within the meaning of section 25249.6.” (Id. at 729.)

The term “expose” is not defined anywhere in Proposition 65. [Citation.] “When a term goes undefined in a statute, we give the term its ordinary meaning.” [Citation.] “In divining a term's ‘ordinary meaning,’ courts regularly turn to general and legal dictionaries.” [Citation.] Courts, however, “must exercise ‘great caution’ when relying on a dictionary definition of a common term to determine statutory meaning because a dictionary ‘“is a museum of words, an historical catalog rather than a means to decode the work of legislatures.”’” [Citation.] Dictionary definitions of the term “expose” include “‘[t]o lay open (to danger, ridicule, censure, etc.)’” and “‘to lay open (as to attack, danger, trial, or test).’” [Citation.] These common dictionary definitions, which appear to emphasize the effect of visibility, do not fully resolve the question of whether water pipes “expose” consumers to marijuana smoke under section 25249.6. [Citation.]

Regulations section 25102, subdivision (i) defines “expose” as “to cause to ingest, inhale, contact via body surfaces or otherwise come into contact with a listed chemical. An individual may come into contact with a listed chemical through water, air, food, consumer products and any other environmental exposure as well as occupational exposures.”

The Health and Welfare Agency explained its reasoning for this definition in its January 1988 Final Statement of Reasons. [Citation.] “Because the Act was titled the Safe Drinking Water and Toxic Enforcement Act of 1986 and because its earliest substantive provision is a prohibition on certain discharges to drinking water, there has been some confusion over the scope of the prohibition on exposing individuals to certain chemicals without first giving clear and reasonable warning. It has been assumed by some that this exposure prohibition, like the prohibition on certain discharges or releases in the Act, is directed at drinking water exposure. There is nothing in the language or the history of the Act to support such a limited interpretation of the exposure prohibition. Therefore, the Health and Welfare Agency broadly defined the term ‘expose’ to include all anticipated means of bringing individuals into contact with chemicals. Examples of these means are provided to further clarify that the Act prohibits all means of directly bringing individuals into contact with chemicals known to the state to cause cancer or reproductive toxicity without clear and reasonable prior warning.” [Citation.]

The original lead agency thus understood Proposition 65 to prohibit any act that directly brings a consumer into contact with a listed chemical. [Citation.] Other portions of the January 1988 FSOR are consistent with that interpretation. Discussing the exposure prohibition in the context of agricultural products, the agency rejected any assumption that such an exposure occurs only on the date that a particular product is consumed. [Citation.] It stated: “The term ‘expose’ generally means ‘to lay open’, as to something which is injurious or dangerous. Laying an individual open to a chemical hazard through a consumer product could result from any act which propels the product toward the individual.” [Citation.] The agency thus explained that the scope of the term could include conduct that “propels” the product towards a consumer, not the chemical hazard. [Citation.]

Third, they found the lead agency’s interpretation “consistent with the explicit purpose of Proposition 65”:

The preamble to Proposition 65 states: “The people of California find that hazardous chemicals pose a serious potential threat to their health and well-being, that state government agencies have failed to provide them with adequate protection, and that these failures have been serious enough to lead to investigations by federal agencies of the administration of California's toxic protection programs. The people therefore declare their rights: [¶] (a) To protect themselves and the water they drink against chemicals that cause cancer, birth defects, or other reproductive harm. [¶] (b) To be informed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm. [¶] (c) To secure strict enforcement of the laws controlling hazardous chemicals and deter actions that threaten public health and safety. [¶] (d) To shift the cost of hazardous waste cleanups more onto offenders and less onto law-abiding taxpayers.” [Citation.] Thus, Proposition 65 “is not primarily about punishment for harm that has been inflicted; it is about protection from harmful chemicals, the ability to make informed choices about coming into contact with such chemicals, and deterrence of conduct that undermines these purposes.” [Citation.] Interpreting the term “expose” in section 25249.6 to require a warning for any act that directly brings a consumer into contact with a listed chemical allows consumers to make such informed choices.

Here, EHA does not allege direct contact, but instead that individuals “may be exposed to marijuana smoke” if they use Sream’s water pipe products with marijuana. [] Requiring a warning for possible indirect contact, depending on how a consumer chooses to use the product, would introduce confusion into that decision-making process. Consumers could, for example, interpret such a label on a water pipe to warn of direct exposure caused by the material the pipe is made of, or to warn of the effect of burning any substance on the pipe. Such confusion does not advance the purpose of Proposition 65.

Given the definition of “expose” from Regulations section 25102, subdivision (i) and its related agency interpretation, we conclude that EHA's allegations were insufficient to constitute a cause of action under section 25249.6. Contrary to EHA's contention, that determination was not based on “disputed factual findings.” The complaint did not allege that Sream’s water pipes can only be used with marijuana or require marijuana to function. EHA does not argue that it could make such allegations, only that it could “further explain that bongs are predominantly, if not exclusively, used to smoke marijuana and not for other non-exposure creating purposes.” [] EHA instead relies on its allegation that individuals “may be exposed to marijuana smoke” through “reasonably foreseeable use” of the water pipe products. Such allegations do not satisfy the agency definition and interpretation of the term “expose” and . . . EHA presents no basis for application of a “reasonably foreseeable use” standard to this term.

Fifth, they rejected EHA’s argument that Proposition 65’s remedial nature supported a broad interpretation of “expose”:

EHA argues that the trial court “did not acknowledge or address the remedial nature of Proposition 65 or address why it was appropriate to narrowly construe Proposition 65's warning requirements for bong products.” “‘Proposition 65 is a “right to know” statute requiring companies that expose consumers to carcinogens or reproductive toxins to provide a reasonable and clear warning.’” [Citation.] “‘It is a remedial law, designed to protect the public, and thus we construe its provisions broadly to accomplish that protective purpose.’” [Citation.] We recognize, however, that this purpose would be stymied by an overly broad interpretation of the statute not supported by its language or governing regulations. Indeed, the “proliferation of unnecessary warnings ‘“could distract the public from other important warnings on consumer products.’” [Citation.] “[O]verwarning may have the additional pernicious effect of causing users and consumers to ignore the warnings and possibly reducing the efficacy of warnings generally.” [Citation.] The California Supreme Court has noted this issue in the product liability context: “Not all warnings, however, promote user safety. Requiring manufacturers to warn their products’ users in all instances would place an onerous burden on them and would ‘“invite mass consumer disregard and ultimate contempt for the warning process.”’” [Citation.] Moreover, as explained above, there is potential for heightened consumer confusion here by requiring a warning that is only relevant if the consumer chooses to use Sream’s water pipe in a certain way.

Sixth, they rejected EHA’s argument that “Proposition 65 requires a warning for exposure to a chemical stemming from ‘reasonably foreseeable use’ of the product” and distinguished Lee v. Amazon.com, Inc. (2022) 76 Cal.App.5^th 200:

To support this position, EHA relies on the definition of “consumer product exposure” provided in article 6 of the Proposition 65 regulations as “an exposure that results from a person's acquisition, purchase, storage, consumption, or any reasonably foreseeable use of a consumer product, including consumption of a food.” [Citation.] Such reliance is misplaced. Regulations section 25600, subdivision (a), explicitly states: “Nothing in Article 6 shall be interpreted to determine whether a warning is required for a given exposure under Section 25249.6 of the Act.”

As the Health and Welfare Agency explained in its 1988 RFSOR: “The definition of ‘consumer products exposure,’ however, is not intended to establish when an exposure occurs. It is intended to address the availability of the ‘safe harbor’ warning. The term ‘expose’ is defined elsewhere as meaning ‘to cause to ingest, inhale, contact via body surfaces or otherwise come into contact with a chemical.’ (22 C.C.R. § 12201(f).)” [Citation.] As expressed in both the regulations and related agency interpretation, we conclude that the “reasonably foreseeable use” element of Regulations section 25600.1, subdivision (e) does not apply to the term “expose” in section 25249.6.

We reached the same conclusion in Lee. In that case, a consumer filed a Proposition 65 action against Amazon for offering third-party skin-lightening face creams alleged to contain mercury without a warning. [Citation.] After a bench trial, the court ruled in favor of Amazon upon concluding that Lee had failed to establish several elements of his Proposition 65 claim. [Citation.] Relying on the “consumer product exposure” definition, the trial court found that Lee was required to prove actual exposure and had failed to do so because he had not proven that purchasers of the products had actually used them. [Citation.] We explained that the “consumer product exposure” definition “provides less insight into the meaning of ‘expose’ as used in Health and Safety Code section 25249.6 than the trial court attributed to it.” [Citation.] We ultimately concluded that evidence of actual use (or “realized exposure”) was not necessary to establish the “expose” element, as potential exposure from a purchased product being used in the intended manner was sufficient. [Citation.] We reasoned that a contrary interpretation would “absolve a business that knowingly and intentionally, without warnings, sold a product whose intended use would necessarily cause the consumer to ingest, inhale or otherwise come into bodily contact with a listed chemical, if the consumer happened not to use the product he or she purchased,” which cannot be squared with the purpose of Proposition 65. [Citation.] The facts of Lee are distinguishable because the face cream products themselves were alleged to contain a listed chemical, and thus the use of the purchased face cream would “necessarily cause” exposure to the chemical. [Citation.] In that scenario, Lee concluded that the potential exposure from a purchased product was sufficient to satisfy the term “expose.” [Citation.] Here, unlike Lee, there are no allegations that Sream’s water pipe products “necessarily cause” exposure to marijuana smoke. [Citation.]

Beyond Regulations section 25600.1, EHA argues that the “reasonably foreseeable use” standard should govern the term “expose” for three other reasons. First, EHA argues that the inclusion of the term “knowingly” in section 25249.6 “incorporates a foreseeability and constructive knowledge standard.” We addressed this “knowingly” element in Lee, as the trial court had determined that the element required proof of Amazon's actual knowledge that the face cream products contained mercury. [Citation.] We interpreted the “knowingly” element to include constructive knowledge, consistent with the agency interpretation in the 1988 RFSOR. [Citations.] More recent agency interpretation may also support application of a foreseeability standard for the “knowingly” element. The 2016 FSOR states: “If a person's use of a product is ‘reasonably foreseeable’ even if it is not entirely consistent with label recommendations, any resulting exposures to listed chemicals can properly be considered to be ‘knowing and intentional’ on the part of the product manufacturer, and are therefore subject to Proposition 65.” [Citation.] But nothing in Lee or the 2016 FSOR regarding the “knowingly” term compels a standard for the “expose” term that is contrary to the agency's definition and interpretation that the element prohibits any act that directly brings a consumer into contact with a listed chemical. EHA's allegation that consumers may be exposed to marijuana smoke through reasonably foreseeable use of Sream’s products, depending on how the consumers choose to use that product, is insufficient to satisfy the exposure requirement of section 25249.6.

Second, EHA argues that the Proposition 65 regulations reference “responsibility” for an exposure and that concept “is similar to and should be read in harmony with ‘foreseeability,’ as foreseeability addresses to what extent one will be held legally responsible for a certain result.” Again, this argument conflates the “knowingly” and “expose” elements of section 25249.6. As the agency interpretation in the 1988 RFSOR states: “use of the term ‘foreseeable’ is intended to define the limits of that constructive knowledge and of exposures for which businesses can reasonably be held responsible.” [Citation.]

Third, EHA cites Consumer Cause, Inc. v. Arkopharma, Inc. (2003) 106 Cal.App.4^th 824, 131 Cal.Rptr.2d 342 (Consumer Cause) to argue that courts “have also looked at ‘actual use’ of the product in determining if a Proposition 65 warning is required” and that such a standard “is similar to, if not broader than, foreseeable use.” Consumer Cause explained that the “‘actual use’” test (not “mere possibility of use”) is applied to determine whether a product is fit for beverage use, and thus requires a Proposition 65 warning for “‘ethyl alcohol in beverages.’” [Citations.] That test is inapposite here.

Seventh, they found the Attorney General opinion letters distinguishable or adverse to EHA’s argument:

Finally, EHA argues that the trial court's ruling “cannot be squared with the positions taken by the California Attorney General who is in charge of filing Proposition 65 cases and supervising private enforcement actions like this one.” A private action may be commenced for an alleged violation of section 25249.6 where (1) 60-day notice is provided to the alleged violator, the Attorney General, district attorneys and city attorneys in the jurisdiction where the violation occurred; and (2) no public official has already commenced prosecution of the same violation. [Citation.] “If, after reviewing the factual information sufficient to establish the basis for the certificate of merit and meeting and conferring with the noticing party regarding the basis for the certificate of merit, the Attorney General believes there is no merit to the action, the Attorney General shall serve a letter to the noticing party and the alleged violator stating the Attorney General believes there is no merit to the action.” [Citation.]

In 1995, the Attorney General issued a letter in response to a notice alleging that “an entity that manufactures, distributes, or sells ‘dry clean only’ clothing” violated Proposition 65 because it was responsible for exposures to perchloroethylene, a solvent used for dry cleaning. [Citation.] It explained that while the clothing manufacturer “indeed knows that the exposure will occur, it is an indirect consequence of the intended use of the product. We think, however, that the exposure is more directly the result of ‘receiving a consumer service,’ i.e., dry cleaning, than the result of the purchase of the garment.” While there is no intervening service provider (like the dry cleaner) here, the basis for the Attorney General's reasoning still applies: marijuana smoke is an indirect consequence of the purchase of Sream’s water pipe, if the consumer chooses to use it to smoke marijuana.

As the question about “‘dry clean only’ clothing” raised “a number of issues concerning the responsibility for exposures where the exposure results in some way from the interaction of two or more products or services,” the Attorney General also “decided to address the issues more broadly” through different scenarios. It stated that the provider of a gas-powered lawn mower is responsible for an exposure to benzene. “While not actually a product of combustion, the combustion process and subsequent venting of engine exhaust in the vicinity of the operator convert the benzene from a liquid form in which exposure would be minimal, into a gas form, or at least particles carried in a gas.” On the other hand, the manufacturer of a “passive vessel” is not responsible for an exposure. “For example, the provider of a champagne glass is not responsible for exposure to alcoholic beverages consumed from the glass, even though such exposure is the result of the known and intended use of the product. The provider of the vessel has done nothing to increase the level of exposure to the listed chemical, but has simply provided an item that is necessary or helpful in use of the product that actually contains the listed chemical.”

In 1997, the Attorney General issued a letter regarding diesel vehicles. It explained that manufacturers of diesel vehicles are not responsible for providing public warnings of environmental exposures “resulting from operation of such trucks in circumstances where the violations are within the control of the operator but not the manufacturer.” It concluded, however, that the manufacturers “would remain responsible for consumer exposures, such as exposures occurring to drivers and operators of diesel trucks” based on diesel engine exhaust resulting from the vehicle's normal emissions.

We are not convinced that the gas-powered lawn mower, diesel trucks, or champagne glass examples are directly on point here. Unlike the gas-powered lawn mowers or diesel trucks, EHA has not alleged that Sream’s water pipe products necessarily use marijuana and or require marijuana to function. Like the champagne glass, a water pipe may be “helpful” in the consumption of a listed chemical. But a water pipe is not a “passive vessel” in the same way as a champagne glass. Unlike the glass, a water pipe does not play a purely passive role because it can be used in a manner that ultimately creates the listed chemical: marijuana smoke.

In 2011, however, the Attorney General issued a letter in response to notices alleging consumers were exposed to alcoholic beverages associated with alcohol abuse through the sale of “‘alcoholic drinking games and novelties’” that include “‘beer pong’ game sets, folding tables decorated with the logos of sports teams, containers from which to drink liquids, and ping pong balls.” The notices alleged that such exposure “occurs through the ‘normal, foreseeable, and intended use of the products.’” The Attorney General urged the withdrawal of such notices, analogizing these products to its previous champagne glass example. It concluded that Proposition 65 does not require a warning for objects that are “commonly used to hold alcoholic beverages or may be used at the time individuals are consuming alcoholic beverages.”

As a preliminary matter, these Attorney General letters clearly reject the “foreseeability” test that the EHA advances here. Moreover, in the letter regarding beer pong game sets and other “‘alcoholic drinking games and novelties,’” the Attorney General interpreted its “passive vessel” rule to include products that may have an indirect effect on the consumption of a listed chemical (alcoholic beverages, when associated with alcohol abuse) depending on how consumers use the product. The trial court's ruling here is consistent with that interpretation.

Eighth, they “conclude[d] that the trial court did not err in finding EHA had alleged insufficient facts for its Proposition 65 claim and granting the motion for judgment on the pleadings.” (Id. at 737.)

Ninth, they found that the trial court did not “abuse[] its discretion in denying leave to amend”:

[W]e must consider whether there is a “‘reasonable possibility’” that the defect can be cured by amendment: if so, the denial constitutes an abuse of discretion. [Citation.] “‘The burden of proving such reasonable possibility is squarely on the plaintiff.’” [Citation.]

EHA has not met its burden. As described above, EHA does not offer any proposed additional allegations to show that Sream’s water pipe products directly bring consumers into contact with marijuana smoke. It does not suggest that Sream’s water pipe products necessarily emanate marijuana smoke or require marijuana to function. Instead, EHA continues to rely on its previously alleged “foreseeability” standard to argue that it could “further explain that bongs are predominantly, if not exclusively, used to smoke marijuana and not for other non-exposure creating purposes.” [Citation.] EHA also suggests it could articulate how water pipes “maximize exposure to marijuana smoke.” Such allegations would still be insufficient because they relate to a possible indirect consequence, depending on how consumers choose to use the water pipes. We thus conclude that the trial court did not abuse its discretion in denying EHA's request for leave to amend.

* The FAC alleges that “Defendants marketed their machines specifically to air fry particular types of food that form and generate high levels of acrylamide.” (Opposition, p. 8, emphasis in original.)

* “[W]aterpipes and air fryers are entirely different machines, the former requiring active involvement of the consumer, while the latter merely requires the consumer to push a button.” (Ibid. [arguing that “exposure to smoke from a waterpipe is the result of direct consumer activity (the consumer actively causing the exposure), whereas exposure to acrylamide form food that Defendants recommend be air fried results from the mechanical and autonomous functioning of the machine”].)

[Plaintiff’s] first strawman is that the defendants “marketed their air fryers specifically to air fry particular types of foods that form and generate high levels of acrylamide.” [Citation.] Yet, Plaintiff does not articulate how the marketing of a product can convert an indirect exposure into a direct exposure, which would be an unworkable rule without any basis in the law. Not only is plaintiff’s purported distinction without a difference, it fails to overcome the fact that plaintiff’s pre-suit notice asserted that exposures to acrylamide are not inevitable, but “occurred via ingestion when consumers ate plant-based and some other foods cooked in the entities’ air fryers” — not all foods. [Citation.] It also ignores that plaintiff’s original complaint and FAC both allege that acrylamide is formed in air fryers “when foods containing asparagine and reducing sugars are cooked at high temperature.” [Citations.] In other words, plaintiff does not, and cannot, allege that air fryers can “only be used with [foods containing asparagine and reducing sugars] or require [such foods] to function.” [Citation.] As was the case in Sream, plaintiff’s own pleadings demonstrate that the exposure at issue “may” occur, depending on how the consumer chooses to use the product. Moreover, the complaint in Sream states in the first paragraph, “Defendant knows and intends that customers will use Products exposing consumers to marijuana smoke.” [Citation.] Plaintiff’s allegation of intentional “marketing” is an immaterial distinction between this case and Sream.

Plaintiff’s second strawman is that Sream is factually distinguishable because a user of a water pipe takes a number of separate actions (use a lighter, inhale deeply, vigorously inhale, and keep a flame lit), while “[a]ir fryers form acrylamide by heating air to high temperatures and rapidly circulating the heated air throughout the machine without consumer involvement.” [Citation.]

But these facts are nowhere to be found in the Sream complaint, or in the published appellate opinion. . . .

Plaintiff’s mere parsing of the individual actions that a consumer must take to use a water pipe were not part of the ratio decidendi of Sream. But even if they were, plaintiff’s purported distinction between water pipes and air fryers does not survive cursory scrutiny, as one can easily construct a similar, user-dependent scenario for air fyers from the notice, complaint, and FAC: in order to create an exposure to acrylamide from using an air fryer, a consumer must do all of the following: (1) pick a food that contains asparagine and reducing sugars, (2) decide how much oil, if any, to use, (3) use the air fryer function of the product, (4) set it at “high temperatures,” (5) cook it for a sufficient time to allow the acrylamide to develop, and (6) eat the cooked food. In light of the above quotation from Sream, plaintiff cannot seriously contend that these factual scenarios are different in a material way for purposes of applying the Sream holding. Plaintiff’s second strawman fares no better than the first.

(Reply, pp. 13-15, emphasis in original, underlined case names added, footnote omitted.)

* The 8/19/22 order states that “section 25249.6 and ‘expose’ should be interpreted broadly” and that Plaintiff “states a violation under a broad interpretation.” (8/19/22 Tentative Ruling Re: General Demurrer, p. 7.)

* Sream rejects a broad interpretation. (See Sream, supra, 83 Cal.App.5^th at 732-733 [finding that interpreting “expose” broadly based on Proposition 65’s remedial nature could cause “heightened consumer confusion” and “invite mass consumer disregard and ultimate contempt for the warning process”].)

* The 8/19/22 order states that “it is a factual question, at least, whether customers eating air-fried food is an inevitable and foreseeable result of Defendants’ design, manufacture, and sale of the air fryers and the customers’ use of the product ‘in the intended manner[.]’” (8/19/22 Tentative Ruling Re: General Demurrer, p. 7.)

* Sream rejects the “reasonably foreseeable use” standard. (See Sream, supra, 83 Cal.App.5^th at 733-735.)

* The 8/19/22 order states that “[t]he Attorney General opinion letters and consent decrees . . . support a broad interpretation.” (8/19/22 Tentative Ruling Re: General Demurrer, p. 8 [finding the opinion letters and consent decrees persuasive].)

* Sream distinguishes the Attorney General opinion letters or finds them incongruent with a broad interpretation and rejects reliance on consent decrees. (See Sream, supra, 83 Cal.App.5^th at 735-737.)

* The 8/19/22 order analogizes Lee. (8/19/22 Tentative Ruling Re: General Demurrer, pp. 9-11 [reasoning that, “[l]ike Amazon’s interpretation” in Lee, “Defendants’ ‘interpretation of . . . section 25249.6 . . . would absolve a business that knowingly and intentionally, without warnings, sold’ an air fryer ‘whose intended use would necessarily cause the consumer to ingest . . . a listed chemical, if the consumer happened not to use’ the air fryer ‘he or she purchased’”], emphasis in original.)

* Sream distinguishes Lee, seeming to limit Lee’s reach to products that contain listed carcinogens as components. (See Sream, supra, 83 Cal.App.5^th at 734-735 [“The facts of Lee are distinguishable because the face cream products themselves were alleged to contain a listed chemical, and thus the use of the purchased face cream would ‘necessarily cause’ exposure to the chemical. [Citation.] In that scenario, Lee concluded that the potential exposure from a purchased product was sufficient to satisfy the term ‘expose.’ [Citation.] Here, unlike Lee, there are no allegations that Sream’s water pipe products ‘necessarily cause’ exposure to marijuana smoke. [Citation.]”], underlined case names added.)

* Substantively, the FAC’s allegations match the Sream allegations. It is undisputed that neither product is made of a listed carcinogen. The FAC alleges that, during the heating process, acrylamide is formed on the food placed in the air fryers, and people suffer exposures when they eat the food after heating. (See FAC, ¶¶ 103-109, 138-140.) EHA alleged that people suffer exposures to marijuana smoke when they use the water pipes to heat marijuana. (See Sream, supra, 83 Cal.App.5^th at 727-728.) Sream holds that such allegations allege indirect exposures instead of direct exposures. (See id. at 732.)

Should leave to amend be granted? In Sream, EHA requested leave to “further explain that bongs are predominantly, if not exclusively, used to smoke marijuana and not for other non-exposure creating purposes.” (Id. at 738, emphasis in original.) The justices affirmed the trial court’s denial because EHA could not allege that the “water pipe products necessarily emanate marijuana smoke or require marijuana to function[,]” and the proposed allegations “relate[d] to a possible indirect consequence, depending on how consumers choose to use the water pipes.” (Ibid., emphasis in original.) Here, Defendants state that air fryers only generate acrylamide in certain kinds of food. (See Reply, pp. 13-14; see also, e.g., FAC, ¶ 115 [alleging that “acrylamide is created in air fryers, inter alia, when raw foods containing asparagine and reducing sugars are air-fried in air fryers”], emphasis added.) Unless Plaintiff’s counsel demonstrates at the hearing that he is able to amend to allege that air fryers generate acrylamide in all foods, the Court is inclined to deny leave to amend.

[1] According to the FAC:

4. CERT has long been at the forefront of protectingCalifornia consumers from the carcinogenic hazard of acrylamide in the human diet. CERT filed the first case to enforce Proposition 65 regarding acrylamide in french fries in 2002 - the very year that the carcinogen and neurotoxin known as acrylamide was first reported to be present in cooked foods. CERT co-litigated the next case regarding acrylamide in potato chips with the California Attorney General. Those cases were both successful and conferred substantial benefits to California consumers. In the former case, french fry manufacturers agreed to provide legally required cancer hazard warnings and in the latter case, potato chip manufacturers reduced acrylamide levels in potato chips in lieu of warning, which is, of course, the best result for public health.

(Id. at ¶¶ 3-5, underlined case name added.)

[2] Plaintiff claims “a petition to decertify” Sream “is presently pending” (Opposition, p. 8), but Defendants represent that the Supreme Court denied the request on 12/21/22. (See Reply, p. 12 n.1.)

[3] “A water pipe typically consists of a chamber that contains water, along with a mounted bowl that contains a particular substance.” (Id. at 727.) “A user can burn the substance and create suction to draw smoke through the water, where the smoke is cooled before it is ultimately inhaled.” (Ibid.)