Judge Teresa A. Beaudet, Case Number: 24STCV02929, Date: 2024-10-02 Tentative Ruling

Plaintiff Keep America Safe and Beautiful (“Plaintiff”) filed this Proposition 65 action on

February 5, 2024 against Defendant Voyage Foods, Inc. (“Defendant”). The Complaint alleges one cause of action for violations of Health and Safety Code section 25249.6.

In the Complaint, Plaintiff alleges, inter alia, that “[t]his Complaint seeks to remedy Defendant’s continuing failure to adequately warn individuals in California that they are being exposed to cadmium, a chemical known to the State of California to cause cancer and other reproductive harm. Such exposures have occurred, and continue to occur, through the manufacture, distribution, sale and consumption of Defendant’s Voyage - Peanut-Free Spread - Roasted Seed Spread - UPC#: 8 60007 88390 3 (the ‘Product’). The Product is available to consumers in California through a multitude of retail channels including, without limitation (a) third-party traditional brick-and-mortar retail locations; (b) via the internet through Defendant’s website; and (c) via the internet through third-party retail websites. Consumers are exposed to cadmium when they consume the Product.” (Compl., ¶ 1.) Plaintiff alleges that “Defendant has at all times relevant to this Complaint violated Proposition 65 by knowingly and intentionally exposing individuals to cadmium without first giving clear and reasonable warnings to such individuals regarding the reproductive toxicity of cadmium.” (Compl., ¶ 33.)

Plaintiff’s counsel states in his declaration in support of the motion that “the parties have agreed to terms of a settlement, embodied within a stipulated form of [Proposed] Consent Judgment.” (Krikorian Decl., ¶ 10.)

Plaintiff now moves “for an order to enter judgment pursuant to the terms of the stipulated settlement of this case executed by all parties on or about August 8, 2024.” The motion is unopposed.

Under 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.”

“If there is a settlement of an action brought by a person in the public interest under subdivision (d), the plaintiff shall submit the settlement, other than a voluntary dismissal in which no consideration is received from the defendant, to the court for approval upon noticed motion, and the court may approve the settlement only if the court makes all of the following findings: (A) The warning that is required by the settlement complies with this chapter. (B) The award of attorney’s fees is reasonable under California law. (C) The penalty amount is reasonable based on the criteria set forth in paragraph (2) of subdivision (b).” (Health & Saf. Code, § 25249.7, subd. (f)(4).) The plaintiff “has the burden of producing evidence sufficient to sustain each required finding. The plaintiff shall serve the motion and all supporting papers on the Attorney General, who may appear and participate in a proceeding without intervening in the case.” (Health & Saf. Code, § 25249.7, subd. (f)(5).)

Here, the proof of service attached to the motion states that the moving papers were served on Defendant’s counsel and “Office of the Attorney General” on August 9, 2024.

Health and Safety Code section 25249.6 provides, “[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.” Pursuant to California Code of Regulations, title 27, section 25601, subdivision (a), “[a] warning is ‘clear and reasonable’ within the meaning of Section 25249.6 of the Act if the warning complies with all applicable requirements of this article.”

The subject [Proposed] Consent Judgment as to Voyage Foods, Inc. (herein, the “Proposed Consent Judgment”) indicates that it is “entered into by and between KEEP AMERICA SAFE AND BEAUTIFUL, acting on behalf of the public interest (hereinafter ‘KASB’) and VOYAGE FOODS, INC. (hereinafter ‘VOYAGE’ or ‘Defendant’).” (Krikorian Decl., ¶ 10, Ex. C, ¶ 1.1)

The Proposed Consent Judgment provides that “[b]eginning on the Compliance Date[1], VOYAGE shall be permanently enjoined from manufacturing for sale in the State of California, ‘Distributing into the State of California,’ or directly selling in the State of California, any Covered Product that causes an exposure, as set forth in Section 25249.6 of Proposition 65 and its implementing regulations, to a ‘Daily Cadmium Exposure Level’ of more than 4.1 micrograms of cadmium per day unless it meets the warning requirements under Section 3.2.” (Krikorian Decl., ¶ 10, Ex. C, ¶ 3.1.) The “Covered Product” is defined as “Voyage-Peanut-Free Spread-Roasted Seed Spread-UPC #: 8 60007 88390 3.” (Ibid., ¶ 1.3.)

The Proposed Consent Judgment further provides that “[i]f VOYAGE is required to provide a warning pursuant to Section 3.1, one of the following warnings must be utilized pursuant to California Code of Regulations (‘CCR’) title 27, sections 25603 and 25607.2 (‘Warning’):…” (Krikorian Decl., ¶ 10, Ex. C, ¶ 3.2.) “Option 1” and “Option 2” warnings are set forth in paragraph 3.2 of the Proposed Consent Judgment. (Ibid.)

Pursuant to California Code of Regulations, title 27, section 25603, subdivision (a), “[u]nless otherwise specified in Section 25607.1 et seq., a warning meets the requirements of this subarticle if it is provided using one or more of the methods required in Section 25602 and includes all the following elements:

(1) A symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline. Where the sign, label or shelf tag for the product is not printed using the color yellow, the symbol may be printed in black and white. The symbol shall be placed to the left of the text of the warning, in a size no smaller than the height of the word ‘WARNING’.

(2) The word ‘WARNING:’ in all capital letters and bold print, and:…(D) For exposures to a chemical that is listed as both a carcinogen and a reproductive toxicant, the words, ‘This product can expose you to chemicals including [name of one or more chemicals], which is [are§ known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov.’”

Pursuant to California Code of Regulations, title 27, section 25603, subdivision (b), “[a] short-form warning may be provided on the product label using all the following elements:

(1) The symbol required in subsection (a)(1). (2) The word ‘WARNING:’ in all capital letters, in bold print….(C) For exposures to both listed carcinogens and reproductive toxicants, the words, ‘Cancer and Reproductive Harm -- www.P65Warnings.ca.gov.’” Here, “Option 2” of the warnings set forth in paragraph 3.2 of the Proposed Consent Judgment appears to comply with California Code of Regulations, title 27, section 25603, subdivision (b).

Pursuant to California Code of Regulations, title 27, section 25602, subdivision (a), “[u]nless otherwise specified in Section 25607 et seq, a consumer product exposure warning meets the requirements of this subarticle if it complies with the content requirements in Section 25603 and is provided using one or more of the following methods: (1) A product-specific warning provided on a posted sign, shelf tag, or shelf sign, for the consumer product at each point of display of the product. (2) A product-specific warning provided via any electronic device or process that automatically provides the warning to the purchaser prior to or during the purchase of the consumer product, without requiring the purchaser to seek out the warning.

(3) A warning on the label that complies with the content requirements in Section 25603(a).

(4) A short-form warning on the label that complies with the content requirements in Section 25603(b). The entire warning must be in a type size no smaller than the largest type size used for other consumer information on the product. In no case shall the warning appear in a type size smaller than 6-point type.” Here, the Proposed Consent Judgment provides that “[t]he Warning shall be securely affixed to or printed upon the label of each Covered Product and it must be set off from other surrounding information.” (Krikorian Decl., ¶ 10, Ex. C, ¶ 3.2.)

Pursuant to California Code of Regulations, title 27, section 25602, subdivision (b), “[f]or internet purchases, a warning that complies with the content requirements of Section 25603(a) must also be provided by including either the warning or a clearly marked hyperlink using the word ‘WARNING’ on the product display page, or by otherwise prominently displaying the warning to the purchaser prior to completing the purchase. If the warning is provided using the short-form warning label content pursuant to Section 25602(a)(4), the warning provided on the website may use the same content. For purposes of this subarticle, a warning is not prominently displayed if the purchaser must search for it in the general content of the website.” Here, the Proposed Consent Judgment provides that “for any Covered Product sold over the internet, the Warning shall appear on the checkout page, or prominently displayed to the purchaser prior to completing the purchase, in full text or through a clearly marked hyperlink using the word ‘WARNING’ in all capital and bold letters when a California delivery address is indicated for any purchase of any Covered Product. If a hyperlink is used, the hyper link must go directly to a page prominently displaying the Warning without content that detracts from the Warning.” (Krikorian Decl., ¶ 10, Ex. C, ¶ 3.2.)

Based on the foregoing, the Court finds that Plaintiff has shown that the “[t]he warning that is required by the settlement complies with this chapter.” (Health & Saf. Code, § 25249.7, subd. (f)(4)(A).)

The Proposed Consent Judgment requires Defendant to pay Plaintiff’s counsel “$40,000.00 for all attorneys’ fees, expert and investigation fees and related costs associated with this matter and the Notice.” (Krikorian Decl., ¶ 10, Ex. C, ¶ 5.) The Court finds that Plaintiff’s counsel’s supporting declaration justifies the fee award. Plaintiff’s counsel sets forth the experience and background of each of the attorneys who worked on this case, as well as the requested hourly rate for each attorney. (Krikorian Decl., ¶¶ 1-5, pp. 4-5.) Mr. Krikorian’s hourly rate is $450/hour, Mr. Thomassian’s hourly rate is $550/hour, and Mr. Jivalagian’s hourly rate is $550/hour. (Krikorian Decl., ¶¶ 1, 4, 5, pp. 4-5.) The Court finds that these requested hourly rates are reasonable.

Plaintiff’s counsel attests to the fact that “a total lodestar of $40,000” has been expended on this case. (Krikorian Decl., ¶ 6, p. 5.) No time records are included, but Plaintiff’s counsel does provide a detailed review of the work performed by the attorneys. (Krikorian Decl., ¶ 6, pp. 5-6.) In addition, Plaintiff’s counsel states that his firm has advanced approximately $4,500.00 in unreimbursed litigation expenses in this matter. (Krikorian Decl., ¶ 6, p. 6.)

The Court finds that the amount allocated for attorney’s fees and costs in the Proposed Consent Judgment is reasonable.

Under Health and Safety Code section 25249.7, subdivision (b)(2), the Court shall consider the following factors in assessing the amount of the civil penalty: “(A) The nature and extent of the violation. (B) The number of, and severity of, the violations. (C) The economic effect of the penalty on the violator. (D) Whether the violator took good faith measures to comply with this chapter and the time these measures were taken. (E) The willfulness of the violator’s misconduct. (F) The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole. (G) Any other factor that justice may require.”

The Proposed Consent Judgment provides that Defendant will pay a civil penalty in the amount of $7,500.00. (Krikorian Decl., ¶ 10, Ex. C., ¶ 4.) In compliance with Health and Safety Code section 25249.12, the Proposed Consent Judgment provides that 75% ($5,625.00) of the civil penalty shall be disbursed to the California Office of Environmental Health Hazard Assessment, and the remaining 25% ($1,875.00) shall be paid to Plaintiff. (Ibid.) Plaintiff’s counsel asserts that the “penalty is appropriate given a number of mitigating factors, including, without limitation: (1) Defendant’s willingness to agree, pursuant to the terms of the Consent Judgment, to maintain an appropriate warning to consumers directly on the label of the packaging or container of the Covered Product that it contains Cadmium, and to warn of its reproductive toxicity and carcinogenic potential; (2) the relatively low cadmium levels contained in the Subject Product which, while well in excess of the safe harbor Maximum Allowable Dosage Level of 4.1 micrograms per grams of product, were nonetheless well below the thousand-fold level known to cause reproductive toxicity.” (Krikorian Decl., ¶ 13, pp. 3-4.)

Plaintiff asserts that “the nature and severity of the subject violation is best described as moderate,” and that “Defendant has been very cooperative in providing Plaintiff with any information requested, and, consistent with the aims of the Act, has been amenable to crafting an appropriate resolution.” (Mot. at p. 10:7-9; 10:12-15.)

The Court finds that the civil penalty amount provided for in the Proposed Consent Judgment is reasonable.

Based on the foregoing, Plaintiff’s motion for entry of stipulated consent judgment is granted. The Court will sign the proposed Judgment on Proposition 65 Settlement submitted on August 13, 2024.

[1]The Proposed Consent Judgment provides that “[f]or purposes of this Consent Judgment, the term ‘Effective Date’ shall mean the date this Consent Judgment is entered as a judgment of the Court. For purposes of this Consent Judgment, the term ‘Compliance Date’ shall mean the date that is 90 days after the Effective Date.” (Krikorian Decl., ¶ 10, Ex. C, ¶ 1.6.)

KEEP AMERICA SAFE AND BEAUTIFUL, Plaintiff, vs. VOYAGE FOODS, INC., et al., Defendants.	Case No.:	24STCV02929
	Hearing Date:	October 2, 2024
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: MOTION FOR ENTRY OF STIPULATED CONSENT JUDGMENT

Superior Court of California

County of Los Angeles

Department 50