Judge Teresa A. Beaudet, Case Number: 19STCV39211, Date: 2023-08-22 Tentative Ruling

Plaintiff Consumer Advocacy Group, Inc. (“Plaintiff”) filed the instant Proposition 65 (“Prop 65”) action on October 31, 2019 against Defendants Mojave Foods Corporation (“Mojave Foods”) and Super Center Concepts, Inc., aka Superior Grocers. The Complaint alleges one cause of action for violations of Prop 65. In the Complaint, Plaintiff alleges that defendants are manufacturers, distributors, promoters, or retailers of certain oregano products containing arsenic. (Complaint, ¶¶ 26, 28.) Plaintiff alleges that defendants exposed California consumers of the oregano products to arsenic without first providing any type of clear and reasonable warning of such to the exposed persons before the time of exposure. (Complaint, ¶ 31.)

On February 2, 2022, the Court issued an Order granting Plaintiff’s motion to consolidate the instant action with Consumer Advocacy Group, Inc. v. Mojave Foods Corporation, et al., Case No. 20STCV23202 (the “2020 Case”). The Complaint in the 2020 Case was filed on June 19, 2020 by Plaintiff against Mojave Foods. The operative First Amended Complaint (“FAC”) in the 2020 Case was filed on September 25, 2020, and alleges eleven causes of action for violations of Prop 65. In the FAC, Plaintiff alleges that Mojave Foods exposed California consumers of certain oregano and shrimp products which Mojave Foods manufactured, distributed, or sold, to chemicals including arsenic and lead, without first providing any type of clear and reasonable warning of such to the exposed persons before the time of exposure. (FAC, ¶¶ 31, 42, 53, 64, 75, 86, 97, 108, 119, 130, 141.)

Mojave Foods and Super Center Concepts, Inc., dba Superior Grocers (jointly, “Defendants”) now move for an order granting summary judgment in favor of Defendants and against Plaintiff on all claims in Plaintiff’s consolidated complaints, “on the grounds that no Proposition 65 warning is required pursuant to California Health and Safety Code sections 25249.6 and 25249.10(c) for the oregano and dried shrimp products at issue in the complaints.” In the alternative, Defendants “move for an order granting summary adjudication in their favor on the grounds that (1) the plaintiff failed to provide notice of an exposure to inorganic arsenic oxides from any of the products (Cause of Action 1 (19STCV39211), Causes of Action 3, 4, 6-10 (20STCV23202)) and (2) the plaintiff has not demonstrated an exposure to inorganic arsenic oxides to meet its burden under Proposition 65 (Cause of Action 1 (19STCV39211), Causes of Action 3-10 (20STCV23202)).” Plaintiff opposes.

The Court grants Plaintiff’s request for judicial notice as to Exhibits A, B, E, and F.

The Court denies Plaintiff’s request for judicial notice as to Exhibits C and D.

The Court rules on the parties’ Revised Joint Statement Re Evidentiary Objections filed on January 3, 2023 as follows:

Objection No. 28 to the Declaration of Omar Jimenez: overruled as to the first sentence, sustained as to the second sentence.

Objection No. 30 to the Declaration of Omar Jimenez: overruled as to the first sentence, sustained as to the second sentence.

Objection No. 31 to the Declaration of Omar Jimenez: overruled as to the first sentence, sustained as to the remainder.

Objection No. 33 to the Declaration of Omar Jimenez: overruled as to the first sentence, sustained as to the second sentence.

Objection No. 34 to the Declaration of Omar Jimenez: overruled as to the first sentence, sustained as to the second sentence.

Objection No. 35 to the Declaration of Omar Jimenez: overruled as to the first sentence, sustained as to the second sentence.

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

When a defendant seeks summary judgment or summary adjudication, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c(p)(2).)

First, Defendants assert that Plaintiff’s inorganic arsenic oxides claims must be dismissed because Plaintiff failed to provide notice of any exposure to those chemicals.

In the Complaint in the instant case, Plaintiff alleges that “[b]efore sending the notice of alleged violations, Plaintiff investigated the consumer products involved, the likelihood that such products would cause users to suffer significant exposures to Inorganic Arsenic Compounds and Inorganic Arsenic Oxides (‘Arsenic’), and the corporate structure of each of the Defendants.” (Compl., ¶ 20.) Plaintiff alleges that “each of the Defendants knowingly and intentionally exposed California consumers and users of Oregano, which Defendants manufactured, distributed, or sold as mentioned above, to Arsenic, without first providing any type of clear and reasonable warning of such to the exposed persons before the time of exposure.” (Compl., ¶ 31.)

In the FAC in the 2020 Case, Plaintiff alleges that “Inorganic Arsenic Compounds and Inorganic Arsenic Oxides is hereinafter referred to as ‘Arsenic’.” (FAC, ¶ 19.) Plaintiff alleges in the FAC that “each of the Defendants knowingly and intentionally exposed California consumers and users of [Ground Dried Shrimp I, Dried Peeled Shrimp, Peeled Shrimp, Ground Dried Shrimp II, Ground Dried Shrimp III, Shrimp I, Shrimp II, and Oregano III], which Defendants manufactured, distributed, or sold as mentioned above, to Arsenic, without first providing any type of clear and reasonable warning of such to the exposed persons before the time of exposure…” (FAC, ¶¶ 53, 64, 75, 86, 97, 108, 119, 130.)

Health and Safety Code section 25249.7, subdivision (d)(1) provides in pertinent part that “[a]ctions pursuant to this section 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…(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.”

In addition, pursuant to California Code of Regulations, title 27, section 25903, subdivision (a), “[f]or purposes of Section 25249.7(d) of the Act, ‘notice of the violation which is the subject of the action’ (hereinafter ‘notice’) shall mean a notice meeting all requirements of this section. No person shall commence an action to enforce the provisions of the Act ‘in the public interest’ pursuant to Section 25249.7(d) of the Act except in compliance with all requirements of this section.” Defendants note that “the notice shall identify:…the name of each listed chemical involved in the alleged violation.” (Cal. Code Regs., tit. 27, § 25903, subd. (b)(2)(A)(4).)

Defendants assert that here, “[w]hile the plaintiff has argued that the products exposed consumers to inorganic arsenic oxides, the plaintiff’s notice letters did not include any alleged exposure to inorganic arsenic oxides with respect to any of the products.” (Mot. at p. 18:2-5.) Defendants attach as Exhibits A, D, E, and G-L to the Declaration of Omar Jimenez a number of notices of violation. (Defendants’ Undisputed Material Fact (“UMF”) No. 48; Jimenez Decl., ¶¶ 6, 9, 10, 12-17, Exs. A, D, E, and G-L.) Defendants note that the subject line of each notice references “Violations of Proposition 65” concerning each corresponding product “containing Inorganic Arsenic Compounds” and defines “Arsenic” as “Inorganic Arsenic Compounds.” (Ibid.) Defendants assert that “inorganic arsenic oxides and inorganic arsenic compounds are listed and treated as separate chemicals by the State of California.” (Reply at p. 6:20-21.) Defendants cite to California Code of Regulations, title 27, section 27001, subdivision (b), which lists “July 9, 2004 Arsenic (inorganic arsenic compounds),” under “[c]hemicals known to the state to cause cancer.” Defendants also cite to California Code of Regulations, title 27, section 27001, subdivision (c), which lists “October 1, 1992 Arsenic (inorganic oxides)” under “[c]hemicals known to the state to cause reproductive toxicity.”

In the opposition, Plaintiff asserts that the subject notices attached as Exhibits A, K, and L to Mr. Jimenez’s declaration “allege exposure to inorganic arsenic oxide in the body of the notice at page 2 by naming ‘Arsenic (inorganic arsenic oxides)’ and stating that the subject item contains inorganic arsenic oxide as ‘Arsenic.’” (Plaintiff’s Response to Defendant’s UMF No. 48.) Exhibits A, K, and L state at page 2 that, inter alia, “CAG has discovered [Ground Spices and Spices], specifically, [Oregano and Ground Oregano] containing [Inorganic Arsenic Compounds and Arsenic]. On February 27, 1987, the Governor of California added Arsenic (inorganic arsenic compounds) to the list of chemicals known to the State to cause cancer, and on May 1, 1997, the Governor added Arsenic (inorganic arsenic oxides) to the list of chemicals known to the State to cause reproductive toxicity…[Exemplars/an exemplar] of the violations caused by the Oregano containing Arsenic [include but are not limited to]…” (Jimenez Decl., ¶¶ 6, 16, 17, Exs. A, K, and L, p. 2, underline added.)

In addition, the notices attached as Exhibits D, E, G, H, I, and J state “CAG has discovered [Ground Dried Shrimps, Dried Peeled Shrimps, Ground Dried Shrimps, and Shrimps]…containing Arsenic. On February 27, 1987, the Governor of California added Arsenic Compounds to the list of chemicals known to the State to cause cancer and on May 1, 1997, the Governor of California added Arsenic Oxides to the list of chemicals known to the state to cause developmental toxicity…An exemplar of the violations caused by Shrimps containing Arsenic includes but is not limited to…” (Jimenez Decl., ¶¶ 9, 10, 12, 13, 14, 15, Exs. D, E, G, H, I, and J, p. 2, underline added.) Plaintiff submits the Declaration of Dr. Jenifer S. Heath, Ph.D, a toxicologist and human health risk assessor, in support of the motion. Dr. Heath states that “[a]rsenic (inorganic oxides) or Inorganic Arsenic Oxides are included in the broad chemical class of (inorganic arsenic compounds).” (Heath Decl., ¶ 7(a).)

In the reply, Defendants assert that, as to Exhibit “A,” “arsenic oxides are mentioned only in a single sentence in the notice stating that Governor Brown had added that chemical to the list of Proposition 65 chemicals; there is no statement that such chemicals are in any of the products that are identified in the notice.” (Reply at p. 7:9-11.) Defendants also assert that “Plaintiff’s other notices all contain similar defects and none say that any of Defendants’ products include arsenic oxides. (See Jimenez Decl., Exs. D, E, G, I, J, K and L.) Thus, there is no competent evidence that the plaintiff gave proper notice to Defendants of a Proposition 65 violation due to arsenic oxides.” (Reply at p. 7:11-14.)

But as set forth above, the notices contained in Exhibits A, K, and L state, inter alia, that “[o]n February 27, 1987, the Governor of California added Arsenic (inorganic arsenic compounds) to the list of chemicals known to the State to cause cancer, and on May 1, 1997, the Governor added Arsenic (inorganic arsenic oxides) to the list of chemicals known to the State to cause reproductive toxicity…Exemplars of the violations caused by the Oregano containing Arsenic include but are not limited to…” (Jimenez Decl., ¶¶ 6, 16, 17, Exs. A, K, and L, p. 2, underline added.) In addition, the notices contained in Exhibits D, E, G, H, I, and J state, inter alia, that “[o]n February 27, 1987, the Governor of California added Arsenic Compounds to the list of chemicals known to the State to cause cancer and on May 1, 1997, the Governor of California added Arsenic Oxides to the list of chemicals known to the state to cause developmental toxicity…An exemplar of the violations caused by Shrimps containing Arsenic includes but is not limited to…” (Jimenez Decl., ¶¶ 9, 10, 12, 13, 14, 15, Exs. D, E, G, H, I, and J, p. 2, underline added.) As noted by Plaintiff, California Code of Regulations title 27, section 25903, subdivision (b)(2) provides that “[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.”

Based on the foregoing, the Court finds that Plaintiff has raised a triable issue of material fact as to whether Plaintiff provided adequate notice of an exposure to inorganic arsenic oxides.

Next, Defendants assert that “[e]ven if the plaintiff had provided notice of an alleged violation of Proposition 65 with respect to inorganic arsenic oxides -- which it indisputably failed to do -- it has still failed to show an exposure to that listed chemical.” (Mot. at p. 18:14-16.) More specifically, Defendants assert that “[b]ecause the undisputed evidence demonstrates that the plaintiff has failed to meet its burden to show an exposure to inorganic arsenic oxides with respect to the products alleged to contain arsenic, the Court should enter judgment for Defendants on the first cause of action in the 2019 complaint and causes of action 3-10 in the 2020 complaint.” (Mot. at p. 19:4-7.) Defendants cite to Health and Safety Code section 25249.6, which provides that “[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.”

Defendants assert that “[a]t most, the plaintiff has shown a potential exposure to trace amounts of inorganic arsenic compounds generally… but has admitted that the products do not violate Proposition 65 with respect to the safe harbor level set by the State for inorganic arsenic compounds.” (Mot. at p. 18:24-19:1, emphasis in original.) Defendants indicate that Mojave Foods’ Request for Admission No. 3 states, “Admit that YOU have no evidence that ingesting the PRODUCTS exposes California consumers to an amount of ARSENIC exceeding 10 micrograms per day (µg/day).” (Assayag Decl., ¶ 3, Ex. B.) Plaintiff’s third supplemental response to Request for Admission No. 3 states, inter alia, that “CAG does not contend at this time that the products expose California consumers to an amount of ARSENIC exceeding 10 micrograms per day (µg/day). At this time, CAG contends that the products expose consumers to Inorganic Arsenic Oxides.” (Ibid.) In support of the motion, Defendants submit the Declaration of Barbara Petersen, a nutritional biochemist, who states that “[i]t is important to note that the Plaintiff provided no test results to indicate the presence of ‘arsenic (inorganic oxides)’ in the Products. Test results were limited to total arsenic and inorganic arsenic.” (Petersen Decl., ¶ 52.)

In the opposition, Plaintiff asserts that “the Element Lab test results confirm Inorganic Arsenic Oxide specifically in four (4) products requiring the motion as to this issue be denied. The ground Shrimp Products and Oregano Products have Inorganic Arsenic Oxides and that testing supports the inference that the whole shrimp have IAO at or similar levels.” (Opp’n at p. 18:15-18.) In her declaration, Dr. Heath states that “[a]s shown in Table 1 below, each of the products alleged to have Inorganic Arsenic Oxide was tested by Brooks Laboratories, and shown to contain Inorganic Arsenic (i.e. Inorganic Arsenic Compounds and/or Inorganic Arsenic Oxides). Of those, four (4) were later tested for speciated Inorganic Arsenic Oxide by Element Labs and each showed levels that were very close to the amounts of Inorganic Arsenic identified by Brooks Laboratories, leading to the conclusion that even for the specific products not subjected to the speciated Inorganic Arsenic Oxide tests by Element, all of the products at issue alleged to have Inorganic Arsenic Oxide have at least some Inorganic Arsenic Oxide and likely approximately equivalent to the amount of Inorganic Arsenic reported by Brooks Laboratories in the product…In other words, based on the results of work conducted by Element Labs and in the context of results on those same products conducted by Brooks Laboratories, most if not all the Inorganic Arsenic reported by Brooks Laboratories for all products is likely Inorganic Arsenic Oxide.” (Heath Decl., ¶ 7(d).)

Based on the foregoing, the Court finds that Plaintiff has raised a triable issue of material fact as to the issue of exposure to inorganic arsenic oxides.

Defendants also assert that “[t]he evidence is that the products do not expose consumers to chemicals in an amount that exceeds the applicable safe harbor levels.” (Mot. at p. 20:8-9.)

“Passed in 1986 by California voters to protect the health and safety of Californians, Proposition 65 requires California to create and maintain a list of chemicals ‘known to the state to cause cancer or reproductive toxicity.’” (Physicians Committee for Responsible Medicine v. McDonald’s Corp. (2010) 187 Cal.App.4th 554, 566, citing Health & Saf. Code, § 25249.8, subd. (a).) Pursuant to Health and Safety Code section 25249.6, “[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.”

Health and Safety Code section 25249.10, subdivision (c) provides that “Section 25249.6 shall not apply to…(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 (1000) 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.” “This exemption is sometimes referred to as the ‘safe harbor’ defense.” (Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 313.)

“The no observable effect level, or NOEL, is a scientific term denoting the maximum dose level at which a chemical is found to have no observable reproductive effect. The NOEL is determined through scientific inquiry and assessment as detailed in the framework set forth in the regulations. In turn, the NOEL is divided by 1,000 to arrive at the maximum allowable dose level (MADL), which is the threshold warning level for a listed chemical. Thus, the MADL (maximum allowable dose level) is set as one one-thousandth of the NOEL. At trial, a defendant can secure the protection of the exposure exemption by establishing (1) the NOEL; (2) the level of exposure in question, and ultimately that the level of exposure was 1,000 times below the NOEL.” (Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 313 [internal quotations and citations omitted].) “The Office of Environmental Health Hazard Assessment (OEHHA) has already determined the MADL for lead. The regulations set the ‘safe harbor’ warning threshold for carcinogenicity as to lead at 15 micrograms per day. (Regs., § 25705.) The regulatory safe harbor level for reproductive toxicity for lead is 0.5 micrograms per day. (Id., § 25805, subd. (b).)” (Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 313.)

In addition, as to inorganic arsenic, Defendants cite to California Code of Regulations title 27, section 25709, subdivision (a), which provides that “[e]xcept where a specific regulatory level is established in Section 25705, exposure to a trace element listed in subsection (b) shall be deemed to pose no significant cancer risk so long as the reasonably anticipated level of exposure to the chemical does not exceed the level set forth in subsection (b).” California Code of Regulations title 27, section 25709, subdivision (b) lists “10 (except inhalation)” as the “No Significant Risk Level in micrograms per day” for “Arsenic (inorganic).” Defendants acknowledge in the motion that “[i]norganic arsenic compounds are not a listed chemical for reproductive harm under Proposition 65,” citing California Code of Regulations title 27, section 25805, subdivision (b). (Mot. at p. 20, fn. 20.)

Defendants assert that “Dr. Petersen’s analysis of the testing data relating to the products demonstrates that any exposures to lead or arsenic from the products at issue in this case are well below the thresholds required for a Proposition 65 warning.” (Mot. at p. 10:12-14.) In her declaration, Ms. Petersen states, inter alia, “I multiplied the geometric and arithmetic mean usual intake of each Product by the geometric and arithmetic mean lead and inorganic arsenic levels for each Product in order to estimate the arithmetic and geometric mean lead intake by consumers of each Product using the formula below. As described above, I used the average lead or inorganic arsenic levels in parts per million (ppm) for each Product, based on the data provided to me that were collected by both the Plaintiff and Defendant.” (Petersen Decl., ¶ 54.) Ms. Petersen also states that “[w]hile OEHHA’s proposed safe harbor level for ‘arsenic (inorganic oxides)’ was never accepted or finalized, I used 0.1 µg/day as a worst-case assessment to evaluate the estimated daily exposure to ‘arsenic (inorganic oxides)’ from consumption of the Products.” (Petersen Decl., ¶ 64.)

Ms. Petersen states in her declaration that “[t]he average consumer’s exposure to lead and inorganic arsenic resulting from consumption of Mojave whole dried shrimp (using all available testing data) is summarized as follows:

Ms. Petersen states that “[t]he average consumer’s exposure to inorganic arsenic resulting from consumption of Mojave ground dried shrimp (using all available testing data) is summarized as follows:

Ms. Petersen further states that “[t]he average consumer’s exposure to lead and inorganic arsenic resulting from consumption of Mojave whole dried oregano (using all available testing data) is summarized as follows:

Ms. Petersen also states that “[t]he average consumer’s exposure to lead and inorganic arsenic resulting from consumption of Mojave ground dried oregano (using all available testing data) is summarized as follows:

Ms. Petersen concludes in her declaration that “[b]ased on my analysis reflected in this Declaration and the accompanying reports, I conclude that the level of exposure to lead and inorganic arsenic based on the usual intake rate of each of the Products following the methodology outlined in the Proposition 65 regulations is below the warning thresholds for lead and inorganic arsenic under Proposition 65. This conclusion applies to all combinations of analytical data provided (i.e., Mojave only, the plaintiff only or all analytical data combined) and regardless of whether the calculation is based on the arithmetic or geometric mean or the maximum level detected in any of the Product samples.” (Petersen Decl., ¶ 65.)

In the opposition, Plaintiff asserts, inter alia, that “[e]ach of the Subject Products exceeds the MADL safe harbor levels for lead and inorganic arsenic oxide respectively.” (Opp’n at p. 21:26-27.) Plaintiff’s expert, Dr. Heath, states that “[t]o calculate exposure to lead and arsenic oxide for the shrimp products as shown below, I calculated as follows on any given day consumed or eating occasion: Intake (µg/day) = Serving size (g/day) x lead or arsenic conc. (µg/g)/” (Heath Decl., ¶ 20.) Dr. Heath further states that “[a]lthough OEHHA has not promulgated an MADL for inorganic arsenic, I have reviewed Dr. Paul Damian’s analysis attached as Exhibit B hereto deriving an MADL of .01 ug/day for inorganic arsenic oxide using the same procedures required in the PROP65 regulations and concur with this methodology. I have reviewed the relevant literature and calculations and share Dr. Damian’s opinion that the MADL should be .01 ug/day.” (Heath Decl., ¶ 7(c).)

Dr. Heath states that “[t]here is only one shrimp product for which the lead content is at issue found at Cause of Action No. 11, for El Guapo Dried Peeled Shrimp Net Wt 2.0z, 56 G. The test results show 454 parts per billion lead concentration (i.e. 45.4 ug/kg and 72.8 ug/kg). As shown in Table 1, the product exceeds the MADL of .05 ug/day as 1.27 and 2.04 ug/day for each test respectively.” (Heath Decl., ¶ 21.) Dr. Heath also states that “I calculated exposure to Inorganic Arsenic Oxide for the Oregano Products and Shrimp Products shown in Table 2 and found them to be non-compliant with Damian’s 2015 proposed MADL as well as the OEHAA 2003 Proposed MADL for Inorganic Arsenic Oxide…Ground Dried Shrimp Products exceeded both MADLs: COA 7, (UPC 44989009920), COA 6 (UPC 44989009876), COA 3 and 9 (UPC 44989203533). Whole Dried Shrimp Products also exceeded both MADLs: COA 4, 8, and 9 (UPC 44989006523), COA 5 UPC 810338001996).” (Heath Decl., ¶ 22.)

Dr. Heath further states that “[t]o calculate exposure to lead and arsenic oxide for the oregano products as shown below, I calculated as follows on any given day consumed or eating occasion and consistent with the above analysis: Intake (µg/day) = Serving size (g/day) x lead or arsenic conc. (µg/g).” (Heath Decl., ¶ 25.) Dr. Heath states that “[a]s reflected in Table 1, the Ground Oregano (UPC 044989011336) exceeds the MADL for lead of 0.5 ug/day and is therefore not compliant with Proposition 65. As reflected in Table 2 showing the Subject Products Inorganic Arsenic Oxide compliance, both Oregano Products exceed the Damian’s 2015 proposed MADL and OEHHA’s 2003 proposed MADL.” (Heath Decl., ¶ 27.)

Dr. Heath further states that “[a]s reflected in Table 3, even assuming Dr. Peterson’s derived geometric mean for the consumption on any given day (g/EO) (or 0.20 g/EO geometric mean) for the Oregano Products and using Dr. Peterson’s geometric mean for Inorganic Arsenic Oxide content, both Oregano Products in Table 3 exceed Damian’s 2015 proposed MADL. Also as shown for Cause of Action No. 10, using Dr. Peterson’s 0.20 g/EO geometric mean for the Oregano Products in Table 2 and Dr. Peterson’s 0.66 Inorganic Arsenic Oxide content derived from the geometric mean of the combined lab results, the product still exceeds (is out of compliance with) OEHHHA’s [sic] 2003 proposed MADL of 0.1 ug/day.” (Heath Decl., ¶ 28.)

In the reply, Defendants contend that “the plaintiff asserts that, rather than apply the plain words of the statutes requiring an analysis based on the ‘reasonably anticipated rate’ of a product’s consumption, the Court must make a Proposition 65 assessment based on ‘any given day’ that the products might be consumed. The problem with this argument is that there is no such standard under the law.” (Reply at p. 9:15-18.) Defendants cite to Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at pages 328-329 in support of the assertion that the Court in that case declined to find that “any given day” is the appropriate standard based on the OEHHA Final Statement of Reasons. (Reply at p. 9:21-22.)

In Beech-Nut, the plaintiff alleged that “certain of defendants’ products contain[ed] toxic amounts of lead sufficient to trigger the duty to provide warnings to consumers. After a bench trial, the trial court entered judgment in favor of defendants, concluding they had no duty to warn because they satisfactorily demonstrated that the average consumer’s reasonably anticipated rate of exposure to lead from their products [fell] below relevant regulatory thresholds.” (Id. at p. 312.) “The court found the expert testimony and analysis presented by defendants to be ‘far more persuasive’ than [plaintiff’s] analysis.” (Id. at p. 322.) The plaintiff appealed from the judgment, and the Court of Appeal affirmed. (Id. at p. 312.)

“The products in question include foods intended predominantly or exclusively for babies and toddlers, such as baby foods, fruit juice, and packaged peaches, pears, and fruit cups.” (Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 314.) The trial court in Beech-Nut concluded, inter alia, that “there was no scientific support for [plaintiff’s] assertion that exposures to Defendants’ products on a single day would increase the blood lead level of pregnant women enough to cause a central nervous system deficit in the fetus.” (Id. at p. 327 [internal quotations omitted].) The plaintiff claimed “the trial court erred in interpreting the regulations so as to allow defendants to average the level of exposure over multiple days instead of evaluating the exposure on the day the food is actually consumed.” (Ibid.) The Court of Appeal found that “all of defendants’ toxicology experts opined that the level of lead in the products at issue was insufficient to cause reproductive harm based on a single day of exposure. Thus, absent an underlying legal or scientific error, substantial evidence supports the conclusion that it was appropriate to evaluate the level of exposure over time.” (Ibid.) The Beech-Nut Court concluded that “[i]n sum, on the record here, we cannot conclude that the trial court erred in accepting defendants’ experts’ opinions that the products qualify for the exemption under the safe harbor defense of Regulation 25801, subdivision (b)(2).” (Id. at p. 329, emphasis added.) The Court does not find that Beech-Nut stands for the proposition that an “any given day” analysis may never be used. The Beech-Nut Court noted that “Proposition 65 envisions a case-by-case approach which takes into account the totality of the quantitative risk assessment evidence presented.” (Id. at p. 328 [internal quotations omitted].)

In the opposition, Plaintiff asserts that “[p]erhaps the existence of triable issues of fact is no more starkly apparent on the determination of whether to average exposure over time or view the exposure on any given day…Exposure to lead and inorganic arsenic oxide cannot be averaged over time. Dr. Heath provides the rationale for her analysis and it is indeed most consistent with the regulations and interpretive guidelines requiring such as well.” (Opp’n at p. 22:12-16.) Exhibit A to Plaintiff’s Request for Judicial Notice is the “Final Statement of Reasons, 22 California Code of Regulations, §12701 and §12801 (subsequently in Title 27), June 1989.” Plaintiff notes that the Final Statement of Reasons provides, inter alia, as follows:

“Therefore, when one evaluates such a reproductive toxin, one needs to view the

exposure as the one that may cause the acute effect. For example, if a food is eaten once

per week, and if that food contains a teratogen, a proper assessment would require the

assumption that ingestion of that food will occur on any day and, hence, every day) of the pregnancy. In other words, averaging to a daily intake would be inappropriate, since the embryonic response ought to be assumed to occur on the day of the ingestion of that food.” (Plaintiff’s RJN, Ex. A, p. 85.)

Dr. Heath asserts that this language “makes it clear that exposure to listed reproductive

toxicants that may cause an acute effect (i.e. a short-term effect) such as teratogens, should not

be averaged across a number of days, weeks, etc. Instead, the relevant exposure (intake) used to

evaluate compliance with the MADL should be the exposure occurring on a given day of

exposure (i.e. a day when the product is actually consumed).” (Heath Decl., ¶ 7(e).) Dr. Heath states that “[i]norganic arsenic oxide…is a clearly established teratogen,” and “[s]ince inorganic arsenic oxide clearly is a teratogen, a multi-day averaging time is not appropriate (per the PROP65 language quoted previously) and the exposure occurring on a given day of use of the product is the correct basis for evaluating compliance.” (Heath Decl., ¶ 7(e).)

Plaintiff also attaches as Exhibit “E” to its request for judicial notice a “Letter from the Attorney General, Edmund G. Brown Jr. dated March 3, 2008 re: Proposition 65 claims concerning lead in lipstick.” The letter states, inter alia, that “[f]or a reproductive toxicant such as lead, the usage on a given day is considered the appropriate measure of exposure, not the long-term daily average.” (Plaintiff’s RJN, Ex. E, p. 5, fn. 5.) Dr. Heath states that “[s]ince lead is a reproductive/developmental toxicant that can produce adverse developmental effects after very short-term (acute) prenatal exposure (perhaps as short as a day or two), use of a long-term averaging period, such as 30 days, is not appropriate…” (Heath Decl., ¶ 19.)

Plaintiff cites to Strobel v. Johnson & Johnson (2021) 70 Cal.App.5th 796, 811, where the Court of Appeal “conclude[d] that the Strobels presented sufficient admissible evidence on legal causation to create a triable issue. On summary judgment, the parties offered the court two starkly different expert perspectives: There was, on the one hand, the view presented by Dr. Compton and Mr. Fitzgerald that J&J obtained talc ore from sources contaminated with asbestos during the exposure period, a premise from which these experts draw the inference that asbestos was present in JBP when Doug Strobel used it. On the other hand, there was the view presented by Dr. Sanchez that J&J sorted and screened its ore in the mining process to ensure only the most pristine talc was used for cosmetic products, and that suppliers were subject to strict testing requirements—established under an FDA-approved testing protocol—to confirm that source ore used to make JBP was asbestos free. Which of these competing views to accept must be decided at trial.”

Based on the foregoing, the Court finds that Plaintiff has raised a triable issue of material fact as to whether levels of lead and inorganic arsenic oxide in the subject products fall within Prop 65’s regulatory “safe harbor.”

For the foregoing reasons, Defendants’ motion for summary judgment or, in the alternative, summary adjudication, is denied.

[1]The Court notes that Defendants state in the joint statement that they “believe that the interests of justice and judicial efficiency would be best served by staying these actions pending the full and final resolution of the Gel Spice dispute.” (Joint Statement at p. 8:3-4.) The Court agrees with Plaintiff that Defendants’ request for a stay in the joint statement of evidentiary objections is procedurally improper. Moreover, Defendants do not cite to any legal authority in support of such request. Thus, the court denies any request by Defendants for a stay of the instant action.

[2]The Court notes that paragraph 16 of the Declaration of Dr. Jenifer S. Heath, Ph.D appears to be incorrectly labeled as paragraph “26.”

consumer advocacy group, inc., Plaintiff, vs. MOJAVE FOODS CORPORATION, et al. Defendants.	Case No.:	19STCV39211 [c/w 20STCV23202]
	Hearing Date:	August 22, 2023
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Superior Court of California

County of Los Angeles

Department 50