Judge: Gail Killefer, Case: 24STCV08902, Date: 2025-01-27 Tentative Ruling

Case Number: 24STCV08902    Hearing Date: January 27, 2025    Dept: 37

The Complaint alleges that Defendants intentionally and knowingly exposes consumers to Cadmium, a chemical known to cause reproductive harm, via the sale of its chopped Spinach. “Due to the toxicity of Cadmium, the maximum allowable dose level is 4.1 micrograms a day.” (Compl., ¶ 21.)

FROG No. 17.1 requests the following:

Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission:

(a) state the number of the request;

(b) state all facts upon which you base your response;

(c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and

(d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.

Defendant Pictsweet’s RFAs focus how much spinach the “average consumer” eats:

·        RFA 1: The average consumer does not eat frozen chopped spinach every day.

·        RFA 6: The average consumer eats frozen chopped spinach less than once per five days.

·        RFA 7: The average consumer eats frozen chopped spinach less than once per five days.

·        RFA 20: The average consumer eats frozen spinach less than once per five days.

·        RFA 44: The average consumer does not eat the CHOPPED SPINACH PRODUCT every day.

·        RFA 51: The average consumer eats the CHOPPED SPINACH PRODUCT less than once per week (seven days).

·        RFA 52: The average consumer eats the CHOPPED SPINACH PRODUCT less than once per eight days.

·        RFA 61: The average consumer of frozen chopped spinach eats more than one cup per eating occasion.

·        RFA 69: The average consumer of the CHOPPED SPINACH PRODUCT eats more than one cup per eating occasion.

Plaintiff refuses to answer the RFAs on the basis that “average consumer” is not defined in the RFAs.

Defendant asserts that “average consumer” is defined by the regulations, but fails to cite the specific statute providing a definition. Defendant fails to explain if “average consumer” is synonymous with  “average user” as used in 27 Cal. Code Reg. § 25721(d)(4):

For exposures to consumer products, lifetime exposure shall be calculated using the average rate of intake or exposure for average users of the consumer product, and not on a per capita basis for the general population. The average rate of intake or exposure shall be based on data for use of a general category or categories of consumer products, such as the United States Department of Agriculture Home Economic Research Report, Foods Commonly Eaten by Individuals: Amount Per Day and Per Eating Occasion, where such data are available.

(Cal. Code Regs., tit. 27, § 25721(d)(4) [emphasis added].)

Furthermore, by statute, Defendant is not required to provide a Proposition 65 warning if Defendant can show that the exposure level is insufficient to cause reproductive harm.

(c) An exposure for which the person responsible can show that the exposure poses no significant risk assuming lifetime exposure at the level in question for substances known to the state to cause cancer, and that the exposure will have no observable effect assuming exposure at one thousand (1,000) times the level in question for substances known to the state to cause reproductive toxicity, based on evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for the listing of such chemical pursuant to subdivision (a) of Section 25249.8. In any action brought to enforce Section 25249.6, the burden of showing that an exposure meets the criteria of this subdivision shall be on the defendant.

(Cal. Code Regs., tit. 27, § 25249.10(c).)

Plaintiff’s response to FRONG 17.1 is as follows:

Due to the teratogenic nature of cadmium, whereby it is absorbed by an embryo upon a single consumption of the chemical by the mother, HLF denies each of the Requests for Admission as there is no “average consumer” or “average consumption” amounts of the PRODUCT that are relevant or necessary to prove. Thus, the statistics provided in the NHANES dataset, which are equally available to the parties, are irrelevant and cannot provide this responding party with any useful information to supply herein.

(Lemle Decl., Ex. B.)

The triable issue is what level of exposure to  Cadmium, if any, is permissible. But Defendant’s RFAs focus on how much spinach an average user consumes, not the level of exposure.

Plaintiff further objects to Defendants discovery request on the basis that Cadmium is a teratogen and no averaging of exposure should be permitted as a defense. “A teratogen is a chemical that can cause birth defects.” (People ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1556.) “Thus, an ‘exposure of short duration’ is the appropriate frame of reference for a teratogenic chemical.’ ” (Ibid.)

Plaintiff’s opposition papers fails to show thatis recognized as teratogen under Proposition 65. Moreover, People ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549 did not hold that no averaging or safe harbor defense were impermissible for teratogens, only that the “reasonably anticipated rate of exposure” may be of “short duration.” (Cal. Code Regs., tit. 27, § 25821(b).)

The Tri-Union Court found that substantial evidence supported the trial court’s finding that methylmercury in tuna is naturally occurring, and offered no opinion on the trial court’s rejection of the States argument that “law does not permit averaging the exposure to a teratogen like methylmercury” because  “a single exposure could cause harm, and thus the single day exposure was the proper unit of comparison to the [maximum allowable dose level].” (Tri-Union, supra, 171 Cal.App.4th at p. 1561.) The trial court rejected the State’s argument “and concluded that the Regulations do not prohibit averaging the exposure to a reproductive toxin.” (Ibid.)

Absent other authority, the court finds no reason why Defendant cannot present evidence that no Proposition 65 warning was required because the average consumption of the product does not create a level of exposure to  Cadmium sufficient to cause reproductive harm. Plaintiff’s discovery response related the average consumption of spinach does not preclude Plaintiffs from presenting evidence that short term/single exposure to Cadmium produces the health risk we are seeking to avoid under Prop 65. 

Lastly, Defendant needs to specify if the “level in question” has the same definition of that provided in Cal. Code Regs., tit. 27, § 25821(a), which states: “For purposes of the Act, ‘level in question’ means the chemical concentration of a listed chemical for the exposure in question.