Judge David S. Cunningham, Case 21STCV39713 2023-02-16 Tentative Ruling

Judge: David S. Cunningham, Case: 21STCV39713, Date: 2023-02-16 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.

On 1/30/23, the Court sustained the general demurrer to the FAC without leave to amend.[2]

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 8/19/22 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 1/30/23 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 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 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.)[3]

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] The general demurrer was brought on behalf of all Defendants.

[3] 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.)