Judge Teresa A. Beaudet, Case BC665798 2022-12-05 Tentative Ruling

Plaintiff Consumer Advocacy Group, Inc. (“Plaintiff”) filed this Proposition 65 (“Prop 65”) action on June 20, 2017. The operative Second Amended Complaint (“SAC”) was filed on January 19, 2021, alleging that various defendants exposed California consumers to lead without Proposition 65 warnings through the manufacture and sale of certain food products (spices). This action was later consolidated with Consumer Advocacy Group, Inc. v. Viva Bargain Center, Inc. (Case No. 19STCV24048), in which the chemicals at issue were lead and arsenic.

Defendants Gel Spice Company, Inc. (“Gel Spice”), Big Lots Stores, Inc., Grocery Outlet, Inc., and Target Corporation (collectively, “Defendants”) now move for summary judgment on the basis that there is a complete defense to the action—Prop 65 is unconstitutional. Plaintiff opposes.[1]

On October 14, 2022, the Court issued a minute order providing, inter alia, that “[b]oth Plaintiff and defendants may file separate supplemental briefs concerning defendant’s combined Motion for Summary Judgment on Issues outlined in the order signed and filed this date and incorporated herein by reference. Defendants may file a Supplemental Brief on or before October 21, 2022. Plaintiff may file an Opposition Supplemental Brief on or before November 4, 2022. The Defendants waive filing a Reply Brief. The issues will be considered by the Court in connection with the hearing on the Legal Motion for Summary Judgement.” On October 21, 2022, Defendants filed a Supplemental Brief Re: Cross Motions for Summary Judgment (Legal). No supplemental brief was filed by Plaintiff.

The Court grants Defendants’ request for judicial notice as to Exhibits A through NN.

The Court grants Plaintiff’s request for judicial notice as to Exhibits A through G.

The Court rules on the parties’ evidentiary objections as set forth in their Joint Statement as follows:

Objection 3: sustained as to the reference to “federal law;” otherwise, overruled

Finally, the Court notes that to the extent that any additional evidentiary objections are made in the parties’ separate statements, those objections do not comply with California Rules of Court, rule 3.1354 and will not be ruled upon or otherwise considered.

“[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).) 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).) “If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence, and the motion must be denied.” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 121.)[2]

First, Defendants contend that Prop 65 is unconstitutional because it violates the dormant Commerce Clause.

“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).) “The statute 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 . . . ,” unless a specified exemption applies.” (Ibid., citing Health & Saf. Code, § 25249.6.) “Proposition 65 provides an exemption from the warning requirement for ‘[a]n exposure for which federal law governs warning in a manner that preempts state authority.’” (Ibid., citing Health & Saf. Code, § 25249.10, subd. (a).)

“The Commerce Clause of the United States Constitution grants Congress the power ‘[t]o regulate Commerce . . . among the several States.’” (Arrow Highway Steel, Inc. v. Dubin (2020) 56 Cal.App.5th 876, 884, quoting U.S. Const., art. I, § 8, cl. 3.) “By entrusting Congress with this power, the clause implies that the states lack that power.” (Ibid. [emphasis in original].) “This ‘negative implication’ of the clause is commonly referred to as the ‘dormant Commerce Clause.’” (Ibid.) “In assessing whether a state law violates the dormant commerce clause, courts are to ask two questions: (1) Does the state law ‘discriminate[] against interstate commerce,’ and if not, (2) Does the state law nevertheless incidentally burden interstate commerce?” (Id. at p. 885.) “A state law that regulates evenhandedly but nevertheless has incidental effects on interstate commerce is valid as long as its burden on interstate commerce is not clearly excessive in relation to [its] putative local benefits.” (Ibid. [internal quotations omitted].) This is known as the Pike balancing test, as set forth in Pike v. Bruce Church (1970) 397 U.S. 137, 143.

Defendants argue that while Prop 65 is not per se discriminatory against out-of-state business or consumers, the impact of Prop 65 is discriminatory. Defendants assert that it is costly for businesses, such as Gel Spice, to comply with Prop 65 requirements. (Kuszynski Decl., ¶ 13; Defendants’ Undisputed Material Fact (“UMF”) 15.) Gel Spice performs its own heavy metals testing on certain spice products, and if any of the test results for the spices show that the levels of arsenic, cadmium, lead, or mercury are above 1 part per million, Gel Spice directs these products for sale and distribution to customers outside of California. (Kuszynski Decl., ¶¶ 9-10.) Gel Spice also directs these products to be used in spice blends. (Kuszynski Decl., ¶ 10.) Gel Spice asserts that compliance with Prop 65 increases the administrative burden for items sold nationwide, resulting in increased product cost that is then shifted to out-of-state consumers for the benefit of Californians.[3]

Plaintiff[4] counters that Prop 65 does not prohibit Defendants from selling spices at lower prices outside of California, selling more-pure spices outside of California, or from shifting the costs of Prop 65 compliance to Californians. Accordingly, any discrimination against out-of-state consumers is the result of Defendants’ business decisions, and not required by Prop 65. Plaintiff also argues that any incidental burden on interstate commerce is minimal compared to the benefits of Prop 65.

“[T]he constitutionality of [a] state regulation depends on” “a sensitive consideration of the weight and nature of the state regulatory concern in light of the extent of the burden imposed on the course of interstate commerce.” (Kassel v. Consol. Freightways Corp. (1981) 450 U.S. 662, 670-671 [101 S.Ct. 1309] (Kassel).) In Kassel, the Supreme Court considered an Iowa law that precluded the use of 65-foot trucks on its highways, limiting the length of trucks to 55 feet, with some noted exceptions. (Id. at pp. 665-666.) Iowa asserted that its law was a “reasonable safety measure enacted pursuant to its police power” because “65-foot doubles are more dangerous than 55-foot singles.” (Id. at p. 667.) But because Iowa “failed to present any persuasive evidence that 65-foot doubles are less safe than 55-foot singles,” the state’s “safety interest” was found to be “illusory.” (Id. at p. 671.) Indeed, the evidence suggested that Iowa’s primary motivation for the law was “to limit the use of its highways by deflecting some through traffic.” (Id. at p. 677.) Moreover, the evidence supported the conclusion that the burden of Iowa’s law on interstate commerce was disproportionately excessive: “Trucking companies that wish to continue to use 65-foot doubles must route them around Iowa or detach the trailers of the doubles and ship them through separately.” (Id. at p. 674.) “Alternatively, trucking companies must use the smaller 55-foot singles or 60-foot doubles permitted under Iowa law[,]” which “engenders inefficiency and added expense[,]” in the form of about $2 million per year in increased costs for the respondent trucking company. (Ibid.) The Supreme Court thus concluded that Iowa’s truck-length limitations unconstitutionally burdened interstate commerce. (Id. at pp. 678-679.)

Here, Plaintiff contends that the State of California has a constitutionally permissible interest in enacting and enforcing Prop 65: the health and safety of Californians as well as Californians’ “right-to-know”. But as noted in Kassel, “the incantation of a purpose to promote the public health or safety does not insulate a state law from Commerce Clause attack.” (Kassel, supra, 450 U.S. at p. 670.) Defendants’ position is that California’s safety interest is, like Iowa’s safety interest in Kassel, merely illusory because there is no evidence that Prop 65’s warnings have resulted in less cancer or reproductive toxicity in California. Defendants contend that, contrary to Prop 65’s stated purpose, the warnings actually confuse consumers because of their ubiquity. (Sala Decl., ¶¶ 5, 7-10; Petersen Decl., ¶ 19.)

Plaintiff argues that Defendants have not demonstrated an excessive or substantial burden on interstate commerce by noting that Gel Spice having to spend approximately $290,134 each year to comply with Prop 65 is “a drop in the bucket.” (Opp’n, p. 13:14-16.) But the Court notes that Plaintiff’s evidence of the metaphorical “bucket” is inadmissible. (See Evid. Obj. Nos. 16-17.) Plaintiff also argues that the burden of compliance with Prop 65 is assignable under applicable regulations because manufacturers, distributors, and retailers may enter into written agreements to allocate the legal responsibility of providing a warning that will supersede the requirements in Prop 65’s regulations. (27 C.C.R. § 25600.2(i).) Plaintiff contends that Defendants could simply charge non-Californians less for spices and charge Californians more for spices to account for the cost of complying with Prop 65. While it is not unreasonable to surmise that the administrative burden of determining how much to charge California versus non-Californians for the same spices is itself a cost imposed by Prop 65 compliance, in any event, Defendants have presented no evidence of such costs.

Second, Defendants contend that Prop 65 as applied to their spices is preempted by the federal Food, Drug and Cosmetic Act (“FDCA”). The FDCA grants the U.S. Food and Drug Administration (“FDA”) broad authority to establish food safety standards and good manufacturing practices, to regulate labels for food products, and to issue food advisories as warranted. (21 U.S.C. § 341; Beru Decl., ¶ 14.)

“Whether federal law preempts state law is fundamentally a question whether Congress has intended such a result.” (Peatros v. Bank of America (2000) 22 Cal.4th 147, 157.) One of the ways in which a state law is preempted by federal law is “conflict preemption,” where a state law is preempted “to the extent that it actually conflicts with federal law.” (Id. at p. 158.) “Such conflict must be of substance and not merely trivial or insubstantial.” (Ibid. [internal quotations omitted].) “It exists when it is ‘impossible . . . to comply with both state and federal requirements’ [citations] or when state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives’ underlying federal law.” (Ibid.)

Defendants argue that Prop 65, as applied to their spices, is conflict preempted by the FDCA because any warnings placed on the subject spices to comply with Prop 65 necessarily frustrate the FDA’s purpose and objectives in implementing the FDCA’s uniform, accurate food labeling laws. Defendants contend that the primary purpose of the FDCA is to assure consumers that food is safe, unadulterated, and not misbranded. (See, e.g., United States v. Lexington Mill & Elevator Co. (1914) 232 U.S. 399, 409 [the “primary purpose of Congress” in enacting the misbranding provisions of the Pure Food and Drugs Act, the precursor to the FDCA, “was to prevent injury to the public health by the sale and transportation in interstate commerce of misbranded and adulterated foods”].) The FDCA authorizes the FDA to regulate the labeling of food products, mandating that the FDA shall “promote the public health” by ensuring that “foods are safe, wholesome, sanitary, and properly labeled.” (21 U.S.C. § 393, subd. (b).) The FDA is responsible for determining levels for harmful substances in foods, and for ensuring that food labels about health risks are accurate and not misleading. (See 21 U.S.C. §§ 343, 346; Defendants’ UMF 23.)

Consistent with the foregoing, Defendants contend that Prop 65 frustrates the purpose and objectives of the FDCA because a Prop 65-compliant warning for the spices at issue misleads consumers. Prop 65’s warning provision is triggered if an individual in California is exposed to any detectable amount of a chemical “known to the state” to cause cancer or reproductive toxicity, and allows a lawsuit if a “clear and reasonable warning” is not given. (27 C.C.R. § 25249.6.) Defendants assert that a Prop 65 warning label on their products will lead a reasonable consumer to believe that (1) products carrying these warnings contain more lead/arsenic than similar unlabeled food products; and (2) that consumption of these products would increase the risk of cancer or birth defects, despite the fact that the federal government has not indicated any such risk.[5] Moreover, Defendants submit that the levels of lead that trigger Proposition 65 warnings are well below standards set to ensure the safety of food in both the US (e.g., the FDCA) and internationally. (Petersen Decl., ¶ 19.)

Plaintiff counters that Defendants are able to comply with both Prop 65’s warning requirements and the FDA’s requirements relating to the labeling of food products. Plaintiff notes that Prop 65 warnings may be transmitted via multiple methods:

“Unless 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.”

Plaintiff also contends that the FDCA is a “floor” and that the FDA does not preapprove food labels, nor does it “necessarily pursue enforcement measures regarding all objectionable labels.” (POM Wonderful LLC v. Coca-Cola Co. (2014) 573 U.S. 102, 116.) In addition, Plaintiff asserts that Prop 65 is complementary to the FDA’s concern regarding overwarning because Prop 65 does not require warnings for inherent or naturally occurring toxins (such as arsenic and lead). (27 C.C.R. § 25501.)

Based on the arguments and evidence presented, the Court finds that Defendants have not met their burden of showing that Prop 65 as applied to Defendants’ spices is preempted.

Third, Defendants contend that because Prop 65 requires warnings for its spices that are misleading and untruthful, Prop 65 violates their First Amendment rights by compelling commercial speech. In Zauderer v. Office of Disciplinary Counsel of Supreme Court (1985) 471 U.S. 626, 651, the United States Supreme Court held that the government may compel commercial speech if such speech is (1) purely factual and uncontroversial, (2) reasonably related to a substantial government interest, and (3) neither unjustified nor unduly burdensome.

Defendants argue that Prop 65 warnings for lead and arsenic in their spices is not purely factual and uncontroversial because such warnings convey to consumers that metals in food exposes them to a palpable risk of cancer and reproductive toxicity, when the scientific evidence is to the contrary. (Petersen Decl., ¶¶ 12, 19.) Defendants cite to Nat'l Ass'n of Wheat Growers v. Zeise (E.D.Cal. 2018) 309 F.Supp.3d 842, 850 (Wheat Growers), nonbinding federal authority, in support of the assertion that Prop 65 warnings for spices are not “purely factual and uncontroversial.” In Wheat Growers, a federal district court enjoined the Prop 65 warning requirement as applied to the herbicide glyphosate based on the conclusion that the warning was not “factually accurate and uncontroversial because [the Prop 65] warning conveys the message that glyphosate’s carcinogenicity is an undisputed fact, when almost all other regulators have concluded that there is insufficient evidence that glyphosate causes cancer.” (Wheat Growers, supra, at pp. 852-853.) The court reasoned that “[o]rdinary consumers do not interpret warnings in accordance with a complex web of statutes, regulations, and court decisions, and the most obvious reading of the Proposition 65 cancer warning is that exposure to glyphosate in fact causes cancer.” (Id. at p. 851.) Defendants contend that the Prop 65 warnings for the lead and arsenic in their spices fail First Amendment scrutiny for the same reason. Defendants assert that the level at which a Prop 65 warning is required is well below the levels that are considered unsafe under either federal law or the Sherman Act. (Defendants’ UMF 36; Petersen Decl., ¶¶ 12, 19.) Moreover, Defendants assert that the Prop 65 warning language that a chemical is “known” to cause cancer or reproductive toxicity conveys to the average consumer that the chemical at issue causes cancer and reproductive toxicity.[6] Defendants also assert that, with respect to arsenic and lead, the Prop 65-mandated warning does not clarify that heavy metals (such as lead and arsenic) are naturally occurring and found at detectible levels in all food sources. (Defendants’ UMF 38; Petersen Decl., ¶¶ 14, 19; Beru Decl., ¶ 13; Bloom Decl., ¶ 3.)

Plaintiff contends that Defendants’ First Amendment “claim” is premature. According to Plaintiff, the free speech issue is not ripe because there has not yet been a determination that the products at issue in this case actually require a Prop 65 warning.[7] Nevertheless, as noted by Defendants, a controversy exists with respect to whether Defendants are in violation of Prop 65’s warning requirements, making this case ripe when it was filed. (See Consumer Cause, Inc. v. Johnson & Johnson (2005) 132 Cal.App.4th 1175, 1183 [“This case was ripe when it was filed, because there was an existing controversy, whether defendants were in violation of Proposition 65’s warning requirements.”].)

Next, Plaintiff asserts that Prop 65 warnings are factual, uncontroversial, and not misleading. Plaintiff distinguishes Wheat Growers, noting that the District Court in that case found that “[i]t is inherently misleading for a warning to state that a chemical is known to the state of California to cause cancer based on the finding of one organization (which as noted above, only found that substance is probably carcinogenic), when apparently all other regulatory and governmental bodies have found the opposite, including the EPA, which is one of the bodies California law expressly relies on in determining whether a chemical causes cancer.” ” (Wheat Growers, supra, at pp. 852-853 [emphasis added].) Plaintiff asserts that in contrast here, “several leading expert scientific agencies and regulatory bodies, including the EPA, the [International Agency for Research on Cancer], and the National Toxicology Program, concur that lead and arsenic are a ‘likely’ or ‘probable’ human carcinogens, as well as reproductive toxicants.” (Opp’n at p. 18:9-12, citing Damian Decl., ¶¶ 3-6, Exs. A-D.)

In their supplemental brief, Defendants cite to the nonbinding authority Cal. Chamber of Commerce v. Council for Educ. & Rsch. on Toxics (9th Cir. 2022) 29 F.4th 468, 472, where the “California Chamber of Commerce…filed suit for declaratory and injunctive relief against the Attorney General of California, seeking to halt acrylamide litigation brought under…Prop. 65. CalChamber argued that Prop. 65’s warning requirement violate[d] the First Amendment of the U.S. Constitution on its face and as applied to acrylamide in food products.” The Ninth Circuit Court of Appeals noted that “the district court found that the safe harbor warning is controversial because of the scientific debate over whether acrylamide in food causes cancer in humans…Given this robust disagreement by reputable scientific sources, the court did not abuse its discretion in concluding that the warning is controversial.” (Cal. Chamber of Commerce v. Council for Educ. & Rsch. on Toxics, supra, at p. 478.) But as referenced above, Plaintiff provides evidence that numerous state, national, and international public health regulatory agencies and authoritative bodies have classified lead and lead compounds as carcinogenic; that there is a scientific consensus that lead and lead compounds cause developmental and reproductive toxicity in humans and animals; that numerous national and international public health regulatory agencies and authoritative bodies have classified inorganic arsenic compounds as carcinogenic; and that numerous scientific studies have been published demonstrating the developmental toxicity of inorganic arsenic. (Damian Decl., ¶¶ 3-6.)

Plaintiff also asserts that “[a] Proposition 65 warning is not telling a consumer that, categorically, a type food is unsafe, i.e., all ground cinnamon. The warning alerts a consumer that a particular and singular food product or batch thereof contains a chemical, and exposure to that chemical carries with it a risk of cancer or reproductive harm for the consumer. Then, the consumer can decide whether he or she wants to undertake that risk. As discussed above, CAG’s expert confirms that lead and arsenic do cause cancer and reproductive harm.” (Opp’n at p. 18:17-23, emphasis in original.) Pursuant to 27 C.C.R., § 25607.2, “(a) A warning for food exposures…meets the requirements of this subarticle if it is provided via one or more of the methods specified in Section 25607.1 and includes all the following elements: (1) The word “WARNING:” in all capital letters and bold print. (2) For exposure to a listed carcinogen, the words, “Consuming 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. For more information go to www.P65Warnings.ca.gov/food.” (3) For exposure to a listed reproductive toxicant, the words, “Consuming 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 birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov/food.” The Court does not find that Defendants have shown that the warnings “[c]onsuming this product can expose you to chemicals including [lead or arsenic], which…[are] known to the State of California to cause cancer” and “[c]onsuming this product can expose you to chemicals including [lead or arsenic], which…[are] known to the State of California to cause birth defects or other reproductive harm” are not purely factual.

Based on the arguments and evidence presented, the Court finds that Defendants have not met their burden of demonstrating that Plaintiff cannot satisfy the first element of the Zauderer test.

Defendants also argue that Plaintiff cannot satisfy the remaining elements of the Zauderer test, i.e., that the Prop 65 warnings for lead and arsenic in Defendants’ spices is justified and not unduly burdensome; and is reasonably related to a substantial government interest. Defendants contend that the dissemination of false or arguably false information serves no legitimate government interest. Defendants also contend that Plaintiff cannot show that a Prop 65 warning for exposures to lead and arsenic in food is “justified” because it seeks to require the warning at levels that are not consistent with federal and international standards.

Plaintiff counters that Prop 65 warnings are reasonably related to a substantial government interest in protecting the health, safety, and welfare of Californians from exposures to toxins. Plaintiff cites to AFL-CIO v. Deukmejian (1989) 212 Cal.App.3d 425, 430, where the Court of Appeal noted that “Section 1 of the preamble of [Prop 65] recites: ‘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. . . .’” As set forth in United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth. (2007) 550 U.S. 330, 342, “government is vested with the responsibility of protecting the health, safety, and welfare of its citizens.” The Court finds that Prop 65 warnings for lead and arsenic reasonably relate to California’s substantial interest in protecting the health, safety, and welfare of its citizens.

Plaintiff also contends that Defendants’ assertion that the harm to be remedied is merely hypothetical is flawed, as there is an established risk of harm from lead and arsenic. (Citing to Plaintiff’s Declaration of Dr. Paul Damian.) Moreover, the Court notes that Defendants have not articulated in the motion how Prop 65 warnings for lead and arsenic in food are unduly burdensome. There is a discussion on this point in Defendants’ reply, but the Court notes that “[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.)

Based on the foregoing, the Court does not find that Defendants have met their burden of demonstrating that Plaintiff cannot satisfy the remaining elements of Zauderer.[8]

Defendants separately argue that Prop 65 fails to survive intermediate scrutiny under Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm’n (1980) 447 U.S. 557 (Central Hudson). The Central Hudson Court found that “[i]n commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.” (Id. at p. 566.)

Defendants assert that the warning requirement does not directly advance a substantial government interest because a Prop 65-compliant warning for lead and arsenic in food would necessarily be misleading and controversial. As discussed above, the Court finds that Defendants have not met their burden of demonstrating that the warnings at issue require the disclosure of information that is not purely factual and uncontroversial. As to Defendants’ assertion that the warning is misleading, as well as Defendants’ assertion that Plaintiff cannot demonstrate that Prop 65 warnings for food would inform consumers about an exposure that actually poses a meaningful risk, Plaintiff provides evidence in Dr. Damian’s declaration pertaining to the exposures at issue. (Damian Decl., ¶¶ 3-6.) As discussed, Dr. Damian indicates that numerous state, national, and international public health regulatory agencies and authoritative bodies have classified lead and lead compounds as carcinogenic; that there is a scientific consensus that lead and lead compounds cause developmental and reproductive toxicity in humans and animals; that numerous national and international public health regulatory agencies and authoritative bodies have classified inorganic arsenic compounds as carcinogenic; and that numerous scientific studies have been published demonstrating the developmental toxicity of inorganic arsenic. (Damian Decl., ¶¶ 3-6.)

Defendants also assert that “there are a number of less restrictive alternatives that do not burden private speech that the State could have explored to communicate its apparent view that lead in food poses a potential health risk.” (Mot. at p. 21:12-14.) Plaintiff counters that Prop 65 is not more extensive than necessary to protect California’s interest, because the warning requirement does not apply to “[a]n 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.” (Health & Saf. Code, § 25249.10, subd. (c).)

Based on a consideration of the arguments and evidence presented, the Court does not find that Defendants have met their burden of demonstrating that requiring Prop 65 warnings is unconstitutional under Central Hudson.

Lastly, Defendants assert that Prop 65 is unconstitutional on its face under Nat'l Inst. of Family & Life Advocates v. Becerra (2018) 138 S.Ct. 2361 (“NIFLA”). Defendants appear to note that the NIFLA opinion provides, “California has the burden to prove that the unlicensed notice is neither unjustified nor unduly burdensome.” (Id. at p. 2377.) Defendants note that pursuant to Health and Safety Code section 25249.10, subdivision (c), “[i]n 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.” Defendants contend that the “Prop 65 warning requirement is thus unconstitutional on its face because it places the burden on the business to show that a warning is unjustified, when NIFLA and other Supreme Court precedent hold that it is the government’s burden to prove that a warning is justified.” (Mot. at p. 21:26-22:1.) Plaintiff counters that Defendants “misstate the order of operations” because “a plaintiff makes a prima facie showing [sic] a violation (a warning would be ‘justified’), then a defendant must make a showing that a warning is not required (the warning is ‘unjustified’) in order to be exempt from the warning requirement.” (Opp’n at p. 22:11-15.) Indeed, 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.”

Based on the foregoing, the Court does not find that Defendants have met their burden of demonstrating that Prop 65 is unconstitutional on its face under NIFLA.

Fourth, Defendants contend that Prop 65 violates their constitutional rights to due process under the Fifth and Fourteenth Amendments in two ways: (1) Prop 65 violates Defendants’ procedural due process rights because it is impermissibly vague, and (2) Prop 65 violates Defendants’ substantive due process rights because its structure impairs Defendants’ freedom of expression, the Rule of Law, and Eighth Amendment protections against excessive fines and penalties.

“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” (Grayned v. City of Rockford (1972) 408 U.S. 104, 108.) “To satisfy the constitutional command, a statute must meet two basic requirements: (1) The statute must be sufficiently definite to provide adequate notice of the conduct proscribed; and (2) the statute must provide sufficiently definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1106-1107.) Defendants argue that Prop 65 is not sufficiently definite as it relates to food items because Prop 65 offers a process for determining when liability may be imposed and then places the burden of proof on the defendant. As an example, Defendants point to the exception for chemicals that are “naturally occurring” in food.

Under the applicable regulations, “[h]uman consumption of a food shall not constitute an ‘exposure’ for purposes of [Prop 65] to a listed chemical in the food to the extent that the person responsible for the exposure can show that the chemical is naturally occurring in the food.” (27 C.C.R. § 25501(a).) But Defendants argue that in application, the regulation fails to provide the specificity companies need to implement it. The regulation provides that the “naturally occurring” level of a chemical “may be established by determining the natural background level of the chemical in the area in which the food is raised, or grown, or obtained, based on reliable local or regional data.” (27 C.C.R. § 25501(a)(2).) Defendants submit that for most food manufacturers, there is no practical way to obtain or generate this data because individual components often come from numerous sources, there is no definition for “reliable local or regional data,” and because background contaminants vary from year to year, lot to lot, and source to source. (Defendants’ UMF 42; Bloom Decl., ¶¶ 15-16; Petersen Decl., ¶¶ 13-18; Beru Decl., ¶ 24.) Moreover, a chemical is “naturally occurring” “only to the extent that the chemical did not result from any known human activity.” (27 C.C.R. § 25501(a)(3).) Defendants argue that making this determination is also impracticable.

Plaintiff asserts that the standards are actually explicit, and that there are plenty of examples of reliable data regarding background/naturally occurring lead and arsenic levels. In particular, Plaintiff points to the Declaration of Arnold J. Bloom, which was filed in support of Defendants’ motion. Mr. Bloom opines at paragraph 9 of his declaration that lead exists in soil typically at concentrations that range from 10 to 50 mg/kg, and that because of the widespread use of leaded pain before the mid-1970s and leaded gasoline before the mid-1980s, as well as contamination from various industrial sources, urban soils often have lead concentrations at much greater than normal background levels.

As another example of vagueness, Defendants point to the regulations concerning Prop 65 testing procedures and methods. (27 C.C.R. § 25900(b) [setting forth a nonexhaustive list of federal and state agencies as sources for “methods of detection and analysis” that businesses “may” rely on].) Defendants contend that businesses can only know whether they made the correct decisions about which tests to use, how often, and what methods to follow after a court ruling. Indeed, it has been noted that Prop 65’s safe harbor does not provide “reasonable assurance that [the manufacturers] would not be subject to enforcement action.” (Wheat Growers, supra, 309 F.Supp.3d at p. 848.) Thus, Defendants contend that Prop 65 enables plaintiffs to file a lawsuit on the slimmest of evidence that an exposure is occurring at the level of detection. (See Health & Saf. Code, § 25249.6 [“No 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.”]; 27 C.C.R. § 25900 [no “knowing and intentional violation” of Prop 65 if a defendant conducts “appropriate” tests that show “the chemical in question was not detected”].)

Plaintiff counters that the regulation identified by Defendants offers the very guidance Defendants contend is missing. Moreover, Plaintiff points out that 27 C.C.R. section 25900, subdivision (c) provides further guidance as to what method of detection and analysis to use—either the methods required by their operating permits or the most sensitive method available. Plaintiff also contends that Prop 65’s standards do prevent arbitrary enforcement. Plaintiff argues that Defendants conflate flexibility to achieve a remedial purpose with vagueness.

Based on the foregoing, the Court finds that Defendants have failed to demonstrate that Prop 65 is void for vagueness. The Court does not find that the impracticability of the Prop 65 standards necessarily make the law impermissibly vague. The proscribed conduct is clear, and while the Court acknowledges that enforcement of the law may be “absurdly easy at the pleading stage and pretrial stages,” this is not the same as demonstrating that the law promotes arbitrary and discriminatory enforcement. (Consumer Defense Group v. Rental Housing Industry Members (2006) 137 Cal.App.4th 1185, 1215.)

Defendants next contend that Prop 65 violates their substantive due process rights

“because its structure and application impair three fundamental rights: freedom of expression, the Rule of Law (the presumption of innocence and that the accuser bears the burden of proving guilt), and Eighth Amendment protections against excessive fines and penalties.” (Mot. at p. 26:28-27:2.)

Defendants appear to contend that Prop 65 impairs their freedom of expression because Defendants are either compelled to make a statement about their products which, when applied to FDA-compliant foods, amounts to self-libel, or risk prosecution with the possibility of attendant civil penalties and litigation expenses. Defendants contend that if it were to warn as required by the law, it would be forced to add misleading, false speech to its product. But as set forth above, the Court does not find that Defendants have shown that the warnings at issue are not purely factual and uncontroversial.

Defendants also contend that Prop 65 offends the Rule of Law, citing to the Sixth Amendment to the United States Constitution, which provides, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” The instant matter is not a criminal prosecution, so the Court does not see how the foregoing provision is applicable. In addition, Plaintiff asserts that Proposition 65 is in line with the Rule of Law by “requiring the accuser to present their case before the accused,” (Opp’n at p. 27:5-6) because Plaintiff must prove 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.” (Health & Saf. Code, section 25249.6.)

Defendants also note that Prop 65 imposes penalties of up to $2,500 per violation per day. (Health & Saf. Code, § 25249.7, subd. (b)(1).) Defendants assert that such potential fines may violate the prohibition against “excessive fines.” (Citing to U.S. Const., 8th Amend., “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Plaintiff counters that Defendants ignore that courts must consider a number of factors in assessing the amount of a civil penalty for a violation of Prop 65, including: “(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.” (Health & Saf. Code, § 25249.7, subd. (b)(2).)

Defendants also assert that Prop 65 violates Defendants’ right to equal protection under the Fourteenth Amendment. Defendants contend (as discussed) that Prop 65 subverts the presumption of innocence by artifice because it places the burden on the defendant to prove its “innocence.”

When a governmental action infringes upon due process and equal protection rights, the action is reviewed by courts under the strict scrutiny standard. (Reed v. Town of Gilbert (2015) 576 U.S. 155, 163-164 [applying strict scrutiny to content-based government regulation of speech].) Such an action survives only if it furthers a compelling government interest and is narrowly tailored to achieve that interest. (Id. at p. 171.) Defendants argue that “Prop 65 warnings as applied to food cannot serve a legitimate state interest, because they are at least arguably false, if not untrue.” (Mot. at p. 29:11-12.) As discussed, the Court does not find that Defendants have shown that the warnings at issue are not purely factual and uncontroversial. Moreover, as set forth above, “government is vested with the responsibility of protecting the health, safety, and welfare of its citizens.” (United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth., supra, 550 U.S. at p. 342.)

Moreover, Defendants contend that Prop 65 is not narrowly tailored to achieve the State’s interest in providing clear and reasonable warnings because it effectively authorizes overwarning. Plaintiff asserts that Prop 65’s regulatory scheme prevents overwarning, noting that pursuant to Health and Safety Code section 25249.10, subdivision (c), a warning need not be provided when “[a]n 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.” (Health & Saf. Code, § 25249.10, subd. (c).)

Based on the arguments and evidence presented, the Court finds that Defendants have not met their burden of showing that Prop 65 violates Defendants’ constitutional rights to equal protection and due process.

[1]As an initial matter, Plaintiff asserts that Defendants failed to serve their motion and supporting documents 75 calendar days plus 2 court days before the hearing. The Court notes that Defendants do not respond to this point in the reply. “Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing.” (Code Civ. Proc., section 437c, subd. (a)(2).) Under Code of Civil Procedure section 1010.6, subdivision (a)(4)(B), the notice period is extended by two court days for electronic service. The hearing on Defendants’ motion was originally noticed for March 26, 2021. 75 calendar days and two court days prior to March 26, 2021 is January 7, 2021. The proof of service filed on January 8, 2021 indicates that the motion was served by email on January 8, 2021. Because Plaintiff filed a substantive opposition to the motion and does not indicate that it was prejudiced by any untimely service of the motion by one day, the Court elects to exercise its discretion to consider the motion.¿(Cal Rules of Court, Rule 3.1300, subd. (d).)

[2]To the extent that Plaintiff argues that Defendants’ burden on summary judgment is “even higher” because Prop 65 is a remedial statute, the Court finds that none of the cases cited by Plaintiff actually so state. While Plaintiff is correct that Prop 65 is “a remedial statute intended to protect the public” and thus is to be construed “broadly to accomplish that protective purpose,” that has nothing to do with the burden of proof under Code of Civil Procedure section 437c. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 461-462.)

[3]See Defendants’ UMF No. 18. The Court notes that although Defendants cite to paragraphs 7-13 of Mr. Kuszynski’s declaration in support of UMF No. 18, Mr. Kuszynski does not appear to expressly indicate that costs are shifted to out-of-state consumers for the benefit of Californians.

[4]Plaintiff asserts in a footnote that because Defendants addressed only six of their nine affirmative defenses in their motion for summary judgment, judgment should be entered in Plaintiff’s favor as to the three affirmative defenses not addressed by Defendants. But Plaintiff fails to cite to any authority for the proposition that judgment may be entered in favor of the opposing party on a summary judgment motion. Indeed, the Court has no authority to enter summary judgment sua sponte. (Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 108.) In addition, the Court notes that the parties were given leave to file briefs in excess of the 20-page limit set forth in California Rules of Court, rule 3.1113(d). Nevertheless, throughout Plaintiff’s opposition to Defendants’ motion for summary judgment, Plaintiff “directs” the Court to Plaintiff’s own motion for summary judgment for a “complete analysis.” (See Opp’n, fn. 3, 6, 9, 12, 13.) This attempt to “incorporate[] by reference” entire sections of Plaintiff’s motion for summary judgment is improper as an attempt to increase the page limit; additionally, it does not “preserve resources” or “promote judicial economy” to require the Court to review an entirely separate document to evaluate Plaintiff’s opposition arguments. Consequently, the Court is not considering any arguments made outside of the 30-page brief filed by Plaintiff in opposition to Defendants’ motion for summary judgment.

[5]See Defendants’ UMF No. 31. The Court notes that although Defendants cite to paragraphs 12-14 of Mr. Sala’s declaration and paragraphs 12 and 19 of Dr. Petersen’s declaration in support of UMF No. 31, Mr. Sala and Dr. Petersen do not indicate in these paragraphs of their declarations that Prop 65 warning labels will lead consumers to believe that “(1) products carrying these warnings contain more lead/arsenic than similar unlabeled food products; and (2) that consumption of these products would increase the risk of cancer or birth defects, despite the fact that the federal government has not indicated any such risk.”

[6]In support of this assertion, Defendants cite to paragraphs 10-16 of Mr. Sala’s Declaration. Mr. Sala’s declaration does not directly state that the Prop 65 warning language that a chemical is “known” to cause cancer or reproductive toxicity conveys to the average consumer that the chemical at issue causes cancer and reproductive toxicity.

[7]The Court notes that on October 3, 2022, the Court issued an Order on Defendants’ Phase Two Combined Motion for Summary Judgment Or, In the Alternative Summary Adjudication on Statutory Affirmative Defenses on the Merits. The October 3, 2022 Order provides, inter alia, that the Court finds that Plaintiff presented sufficient evidence to raise a triable issue of material fact as to whether levels of lead and arsenic in the subject spice products fall within Prop 65’s regulatory “safe harbor.” (October 3, 2022 Order at p. 15:11-13.)

[8]The Court notes that Defendants appear to assert that Plaintiff has the burden to prove each element of the Zauderer test. As set forth above, 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.)

Superior Court of California

County of Los Angeles

Department 50

Plaintiff now moves for summary judgment, or in the alternative, summary adjudication.

Defendants Gel Spice Company, Inc. (“Gel Spice”), Big Lots Stores, Inc., Grocery Outlet, Inc., and Target Corporation (collectively, “Defendants”) oppose.

The Court rules on the parties’ evidentiary objections as set forth in their Joint Statement as follows:

Objection 3: sustained as to the reference to “federal law;” otherwise, overruled

§ 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.)

Defendants identified nine affirmative defenses that they intended to bring in Phase 2: (1) federal conflict preemption; (2) First Amendment rights; (3) commerce clause; (4) res judicata/collateral estoppel; (5) state preemption; (6) due process; (7) equal protection; (8) void for vagueness; and (9) estoppel and waiver. (Plaintiff’s Undisputed Material Fact (“UMF”) 10; Malamphy Decl., ¶ 2, Ex. 1.)

Plaintiff cites to Gade v. National Solid Wastes Management Ass’n (1992) 505 U.S. 88, 98, where the United States Supreme Court noted that “[p]re-emption may be either expressed or implied, and is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Absent explicit pre-emptive language, we have recognized at least two types of implied pre-emption: field pre-emption, where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it…and conflict pre-emption, where compliance with both federal and state regulations is a physical impossibility…or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress…” (Internal quotations and citations omitted.)

Plaintiff first asserts that Prop 65 is not expressly preempted. Plaintiff notes that the Federal Cigarette Labeling and Advertising Act contains a provision providing that “[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.” ((Lorillard Tobacco Co. v. Reilly (2001) 533 U.S. 525, 541.) Plaintiff asserts that here, there is no similar prohibition against state legislation with respect to warnings for toxins in food in the Federal Food, Drug, and Cosmetic Act (“FDCA”).

Defendants counter that Prop 65 is expressly preempted by the FDCA because private enforcement is prohibited. Defendants cite to 21 U.S.C. § 337(a), which provides, inter alia, “[e]xcept as provided in subsection (b), all such proceedings for the enforcement, or to restrain violations, of this chapter shall be by and in the name of the United States.” Defendants assert that accordingly, any attempt by a private party to impose a labeling requirement that infringes on the primary jurisdiction of the Food and Drug Administration (“FDA”) is preempted. But as Plaintiff notes, it is not attempting to enforce the FDCA in this litigation.

Next, Plaintiff asserts that Prop 65 does not conflict with federal legislation or impede federal objectives. Plaintiff contends that it is not impossible for Defendants to comply with Prop 65 and the FDA’s labeling requirements for food. In addition, it is undisputed that the mission of the FDA related to food is to ensure the safety of the nation’s food supply and the safety, efficacy, and security of biological products. (UMF 13; Marcus Decl., ¶ 7.) Plaintiff asserts that Prop 65 is based on California’s interest in protecting the health, safety, and welfare of its citizens from unwitting exposures to toxic chemicals known to cause cancer and reproductive harm (UMF 14; Plaintiff’s RJN, Ex. 5.); and that rather than impeding a federal objective, Prop 65, as a whole, complements the federal government’s objective.

Defendants counter that the FDCA authorizes the FDA to regulate the labeling of food products, mandating that the FDA shall “promote the public health” by ensuring that “foods are safe, wholesome, sanitary, and properly labeled.” (21 U.S.C. § 393, subd. (b).) Defendants assert that the FDA is responsible for determining levels for harmful substances in foods, and for ensuring that food labels about health risks are accurate and not misleading. (See 21 U.S.C. §§ 343, 346.). Defendants contend that there is no method of providing a Prop 65 warning that is not a form of labeling, such that Prop 65 warnings will always infringe upon and conflict with the FDCA.

Plaintiff counters that there are key differences between labeling under the FDCA and Prop 65. Plaintiff notes that pursuant to 27 C.C.R., § 25600.1(j), “labeling” means “any written, printed, graphic, or electronically provided communication that accompanies a product, such as a package insert.” (Emphasis added.) Defendants note in their opposition that under the FDCA, the term “labeling” “means all labels and other written, printed, or graphic matter (1) upon any article or any of its containers or wrappers, or (2) accompanying such article.” (21. U.S.C., § 321(m).) Plaintiff also asserts that Defendants are attempting to “confuse” the field of warning with the field of labeling.

Defendants also contend that the FDA has repeatedly acknowledged the negative impact of placing too many warnings on food labels. Defendants indicate that the FDA has noted that placing warnings on “all foods that may contain an inherent carcinogenic ingredient or a carcinogenic contaminant . . . . would be so numerous they would confuse the public, would not promote informed consumer decision-making, and would not advance the public health.” (Opp’n at p. 15:19-12; citing to 44 FR 59509, et seq. (Oct. 16, 1979).) ((Cf. Dowhal v. SmithKline Beecham Consumer Healthcare (2004) 32 Cal.4th 910, 931 (Dowhal) [“The FDA’s objection to labels warning that nicotine ‘can’ harm the baby is not that they are false, but that consumers may give too much weight to the warnings and decide to continue smoking instead of using an NRT product to stop smoking.”].) Defendants argue that “[b]oth regulatory schemes cannot coexist, because provision of the alarmist Prop 65 warning on spices, at levels the FDA has determined pose no safety risk, frustrates the ultimate purpose of the FDCA: assuring consumers that food sold is safe, unadulterated, clearly labeled and not misbranded.” (Opp’n at p. 14:12-15.) Defendants submit that the levels of lead that trigger Prop 65 warnings are well below standards set to ensure the safety of food in both the US (e.g., the FDCA) and internationally. (Petersen Decl., ¶ 19.) Plaintiff counters that the point of the Prop 65 warning is to ensure that Californians’ right to know about exposures to toxins is upheld. Plaintiff also asserts that the fact that Prop 65 is more protective than federal regulations does not result in the Prop 65 disclosure being untruthful.

Lastly, Plaintiff asserts that Congress has not occupied the field of warning consumers about health and safety risks. Plaintiff asserts that while the FDA is the responsible federal entity for protecting the public health by ensuring the safety, efficacy, and security of biological products, it achieves its mission by working with state partners. (UMFs 13, 15.) In addition, Plaintiff asserts that while the FDA is concerned with ensuring the safety of the nation’s food supply and the safety of biological products; Prop 65 is concerned with warning consumers about exposures to toxins before the exposures occur. (21 U.S.C., § 331; cf. Health & Saf. Code, § 25249.6.) Plaintiff contends that these are entirely different fields.

Defendants counter that field preemption of food labeling should be presumed through negative preemption, noting that “a federal decision to forgo regulation in a given area may imply an authoritative federal determination that the area is best left unregulated, and in that event would have as much pre-emptive force as a decision to regulate.” (Ark. Elec. Coop. Corp. v. Ark. Public Serv. Comm'n (1983) 461 U.S. 375, 384 [emphasis in original].) Defendants contend that “FDA’s unwillingness to explicitly mandate warnings on foods like the ones required under Prop 65 must not be interpreted as an invitation for states to do so, particularly when such warnings stifle FDCA’s objectives.” (Opp’n at p. 19:17-19.) Plaintiff counters that

Defendants do not provide evidence that Congress has affirmatively refused to provide warnings for known health risks.

Based on the arguments and evidence presented, the Court finds that Plaintiff has met its burden of demonstrating that Defendants’ affirmative defense of “federal conflict preemption” is without merit, and that Defendants have failed to raise a triable issue of material fact thereto.

Second, Plaintiff asserts that Prop 65’s disclosure requirements are constitutional.

As an initial matter, Plaintiff asserts that Defendants’ first amendment “claim” is not ripe.

According to Plaintiff, the free speech issue is not ripe because there has not yet been a determination that the products at issue in this case actually require a Prop 65 warning.[1] Nevertheless, as noted in the Court’s ruling on Defendants’ concurrent motion for summary judgment, a controversy exists with respect to whether Defendants are in violation of Prop 65’s warning requirements, making this case ripe when it was filed. ((See Consumer Cause, Inc. v. Johnson & Johnson (2005) 132 Cal.App.4th 1175, 1183 [“This case was ripe when it was filed, because there was an existing controversy, whether defendants were in violation of Proposition 65’s warning requirements.”].)

Next, Plaintiff asserts that Prop 65 survives a Zauderer analysis. In Zauderer v. Office of Disciplinary Counsel of Supreme Court (1985) 471 U.S. 626, 651, the United States Supreme Court held that the government may compel commercial speech if such speech is (1) purely factual and uncontroversial, (2) reasonably related to a substantial government interest, and (3) neither unjustified nor unduly burdensome.

Plaintiff asserts that Prop 65’s warning requirement is purely factual and not misleading. Pursuant to 27 C.C.R., § 25607.2, “(a) A warning for food exposures…meets the requirements of this subarticle if it is provided via one or more of the methods specified in Section 25607.1 and includes all the following elements: (1) The word “WARNING:” in all capital letters and bold print. (2) For exposure to a listed carcinogen, the words, “Consuming 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. For more information go to www.P65Warnings.ca.gov/food.” (3) For exposure to a listed reproductive toxicant, the words, “Consuming 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 birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov/food.” Plaintiff asserts that it is literally true that lead and arsenic are chemicals known to the State of California to cause cancer and birth defects or other reproductive harm. “[S]ection 25249.8 requires that the Governor annually cause to be published ‘a list of those chemicals known to the state to cause cancer or reproductive toxicity within the meaning of this chapter.’” ((Exxon Mobil Corp. v. Office of Environmental Health Hazard Assessment (2009) 169 Cal.App.4th 1264, 1269.) Plaintiff indicates that lead and arsenic appear on the list of Prop 65 regulated chemicals. (27 C.C.R., § 27001.) Plaintiff also asserts that it is literally true that lead and arsenic are well known carcinogens and cause reproductive and developmental toxicity. (Damian Decl., ¶¶ 3-6, Ex. A-D.)

In addition, Plaintiff asserts that Prop 65’s warning requirement is uncontroversial. Plaintiff submits that leading expert scientific agencies, including the EPA, the International Agency for Research on Cancer, the National Toxicology Program, concur that lead and arsenic are a “likely” or “probable” human carcinogen, as well as reproductive toxicants. (Damian Decl., ¶¶ 3-6, Exs. A-D.)

Defendants counter that Prop 65 warnings are not factual as presented, but rather overstate a hypothetical harm. Defendants assert that Prop 65 warnings convey that lead and arsenic levels in Defendants’ spices expose consumers to an immediate risk of cancer and reproductive toxicity[2]; even though the levels of lead that trigger Prop 65 warnings are well below standards set to ensure the safety of food in both the US and internationally. (Petersen Decl., ¶ 19.) But as Plaintiff notes, the assertion that Prop 65 is more protective than federal regulations does not demonstrate that the Prop 65 warning is untruthful.

In addition, Plaintiff asserts that Prop 65 warnings are not unjustified or unduly burdensome. Plaintiff notes that Prop 65 warnings may be as small as 6-point type. (27 C.C.R, § 25602(a)(4).) Plaintiff contends that the minimal space the disclosure would occupy on a product package would not interfere with any other information the Defendants chose to place on product labels. Defendants contend that Prop 65 warnings are unjust and unduly burdensome because they over-warn and erroneously convey that foods are unsafe. Defendants assert that the Prop 65-mandated warning does not clarify that heavy metals (such as lead and arsenic) are naturally occurring and found at detectible levels in all food sources. (Petersen Decl., ¶¶ 14, 19; Beru Decl., ¶ 13; Bloom Decl., ¶ 3.) Defendants also contend that Prop 65 creates a burden stemming from the cost of managing and directing spices with the lowest levels of naturally occurring lead to California, while directing spices with higher levels of lead out of state. (Citing to Kuszynski Decl., ¶¶ 9-10, 13.) Plaintiff counters that the described burden is one of the Defendants’ own creation not an unavoidable burden caused by Prop 65, because Defendants could include a requirement for more pure spices from its suppliers, for example.

Further, Defendants contend that Prop 65 is unjust because the regulatory scheme shifts the burden of proof to the defendant at trial to prove it is innocent when warnings have not been given to consumers. Plaintiff counters that this is of “no moment,” apparently because Plaintiff must make a prima facie showing in a Prop 65 case. Plaintiff cites to Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 476, where the Court of Appeal noted that the plaintiff in that case “met its burden of alleging the elements of its prima facie case--that the Dental Defendants knowingly and intentionally exposed individuals to mercury, a listed reproductive toxin, without providing a warning.”

Lastly, Plaintiff asserts that Prop 65 warnings are reasonably related to the State’s substantial interest. Plaintiff notes that “government is vested with the responsibility of protecting the health, safety, and welfare of its citizens.” (United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth. (2007) 550 U.S. 330, 342.) Plaintiff asserts that here,

California’s interest is protecting the health, safety, and welfare of its citizens from unwitting exposures to toxins; and that warnings for lead and arsenic reasonably relate to this substantial interest because there is strong evidence of cancer and reproductive harm from these chemicals. (Damian Decl., ¶¶ 3-6, Exs. A-D.)

Defendants contend that although protecting the health, safety, and welfare of California’s citizens from unwitting exposures to toxins could constitute a substantial government interest, Prop 65 warnings are not reasonably related to this interest given the “misleading” nature of the mandated language. Defendants also contend that California has no bona fide interest in “overwarning” consumers. Defendants assert that heavy metals are found in virtually all foods. (Petersen Decl., ¶ 19; Beru Decl., ¶ 24; Bloom Decl., ¶ 3.) They cite to the nonbinding case Video Software Dealers Ass’n v. Schwarzenegger (9th Cir. 2009) 556 F.3d 950, 967 which provides, “the State has no legitimate reason to force retailers to affix false information on their products.” Plaintiff argues that inherent in the Defendants’ argument is the flawed premise that there is a requirement to warn when the chemicals are naturally occurring, when there is not. (27. C.C.R, § 25501.)

Plaintiff also asserts that there is no risk of overwarning as applied to the Defendants’ spices. They note that pursuant to Health and Safety Code section 25249.7, subdivision (d), Prop 65 actions may be brought if certain requirements are met, including that “[t]he 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…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.” (Health & Saf. Code, § 25249.7, subd. (d)(1).) Plaintiff asserts that the certificate of merit requirement provides assurance that suits are initiated when the risk of exposure is significant.

Next, Plaintiff asserts that alternatively, Prop 65 survives a Central Hudson analysis.

The Court does not find that the Zauderer test is not the appropriate inquiry, and Defendants indicate that they “agree with CAG that Zauderer offers the appropriate framework for determining whether compelled Prop 65 warnings violate Defendants’ First Amendment Rights.” (Opp’n at p. 21:5-7.) Thus, the Court need not and does not consider Plaintiff’s alternative arguments pertaining to Central Hudson.

Third, Plaintiff asserts that Prop 65 does not violate the dormant commerce clause.

Plaintiff asserts that Prop 65 and its associated regulations do not discriminate against interstate commerce because California is acting as a market participant.

“Under the market-participant doctrine, a State is permitted to exercise independent discretion as to parties with whom [it] will deal. The doctrine thus allows States to engage in certain otherwise-discriminatory practices (e.g., selling exclusively to, or buying exclusively from, the State’s own residents), so long as the State is acting as a market participant, rather than as a market regulator…” (United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth., supra, 550 U.S. at p. 362, internal quotations, citations, and emphasis omitted.) In Hughes v. Alexandria Scrap Corp. (1976) 426 U.S. 794, 809-810, cited to by Plaintiff, “Maryland entered the market for the purpose…of protecting the State’s environment. As the means of furthering this purpose, it elected the payment of state funds - in the form of bounties - to encourage the removal of automobile hulks from Maryland streets and junkyards…the effect upon the flow of hulks resting within the State [was that] they will tend to be processed inside the State rather than flowing to foreign processors. But no trade barrier of the type forbidden by the Commerce Clause, and involved in previous cases, impedes their movement out of State. They remain within Maryland in response to market forces, including that exerted by money from the State. Nothing in the purposes animating the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others.” The Hughes Court noted that “the legislature…enact[ed] a comprehensive statute designed to speed up the scrap cycle by using state money both as a carrot and as a stick.” ((Id. at p. 796.)
Plaintiff argues that similarly here, California has enacted a statutory scheme through Prop 65 in traditional areas of government activity: protecting the environment and protecting the health, safety, and welfare of Californians. Plaintiff also asserts that similar to Marlynd’s approach in Hughes, California offers a carrot to private enforcers in the form of a portion of penalties paid to the State for violating Prop 65, and that California also penalizes violators up to $2,500.00 per day for each violation as the stick. (Health and Saf. Code, § 25249.12(d); Health and Saf. Code § 25249.7(b).)

Defendants assert that California is not a market participant, as “allowing” private enforcers to profit under Prop 65 is not akin to incentivizing private business to process abandoned vehicles. Indeed, the Court is not persuaded by Plaintiff’s argument that California is a “market participant” with respect to Prop 65. As set forth above, “[t]he doctrine…allows States to engage in certain otherwise-discriminatory practices (e.g., selling exclusively to, or buying exclusively from, the State’s own residents), so long as the State is acting as a market participant, rather than as a market regulator…” (United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth., supra, 550 U.S. at p. 362, Internal quotations and emphasis omitted.)

Next, Plaintiff asserts that Prop 65 does not discriminate against interstate commerce. It contends that Prop 65 applies with equal force to in-state businesses and out-of-state businesses by prohibiting any person from discharging listed chemicals into drinking water and prohibiting any person from exposing individuals to listed chemicals without first providing a warning. (Health & Saf. Code, §§ 25249.5-25249.6.) Plaintiff also argues that Prop 65 does not impede the natural economic flow of consumer goods or other services in and out of California since any party in the chain of commerce for a consumer good may place a warning on the product. (27 CCR § 25603(c).) Defendants assert that Prop 65 provides that responsibility for providing a warning should be placed on the product manufacturer to the extent possible (Health & Saf. Code, § 25249.11(f)), and it encourages businesses to enter into contracts to allocate responsibility (27 C.C.R 25600.2(i)), such that Prop 65 promotes pushing compliance and indemnity responsibility on the out-of-state entities, which only increases the likelihood of out-of state consumers bearing the cost of Prop 65 compliance. But Defendants do not appear to cite to evidence supporting the assertion that out-of state consumers bear the cost of Prop 65 compliance.

To the extent Prop 65 has any incidental effects on interstate commerce, Plaintiff asserts that its burden on interstate commerce is not excessive in relation to its putative local benefits under Pike. Plaintiff notes that, as set forth above, “government is vested with the responsibility of protecting the health, safety, and welfare of its citizens.” (United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth., supra, 550 U.S. at p. 342.) Plaintiff asserts that here, Prop 65 is reasonably related to a legitimate local interest – protecting the health and welfare of California’s citizens. Pursuant to Health and Safety Code section 25249.5, “[n]o person in the course of doing business shall knowingly discharge or release a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where such chemical passes or probably will pass into any source of drinking water, notwithstanding any other provision or authorization of law except as provided in Section 25249.9.”

Defendants counter that “the incantation of a purpose to promote the public health or safety does not insulate a state law from Commerce Clause attack.” ((Kassel v. Consol. Freightways Corp. (1981) 450 U.S. 662, 670.) Defendants’ position is that California’s safety interest is merely illusory because there is no evidence that Prop 65’s warnings have resulted in less cancer or reproductive toxicity in California. Defendants contend that, contrary to Prop 65’s stated purpose, the warnings actually confuse consumers because of their ubiquity. (Sala Decl., ¶¶ 5, 7-10; Petersen Decl., ¶ 19.) Defendants also assert that the adverse effect on interstate commerce is “staggering,” indicating that it is costly for businesses, such as Gel Spice, to comply with Prop 65 requirements. (Kuszynski Decl., ¶ 13.) Gel Spice performs its own heavy metals testing on certain spice products, and if any of the test results for the spices show that the levels of arsenic, cadmium, lead, or mercury are above 1 part per million, Gel Spice directs these products for sale and distribution to customers outside of California. (Kuszynski Decl., ¶¶ 9-10.) Gel Spice asserts that compliance with Prop 65 increases the administrative burden for items sold nationwide, resulting in increased product cost that is then shifted to out-of-state consumers for the benefit of Californians.[3] As Plaintiff notes, Defendants do not appear to present evidence that they shift costs of compliance with Prop 65 to only out-of-state consumers.

Based on the arguments and evidence presented, the Court finds that Plaintiff has met its burden of demonstrating that Defendants’ affirmative defense of “commerce clause” is without merit, and that Defendants have failed to raise a triable issue of material fact thereto.

Fourth, Plaintiff asserts that res judicata/collateral estoppel is not applicable to this matter. “Res judicata or claim preclusion precludes the relitigation of a cause of action that previously was adjudicated in another proceeding between the same parties or parties in privity with them. Res judicata applies if (1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding. Res judicata bars the litigation not only of issues that were actually litigated but also issues that could have been litigated.” ((Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202 [internal citations omitted].)

Collateral estoppel is “an aspect of the doctrine of res judicata.” ((Arias v. Superior Court (2009) 46 Cal.4th 969, 985.) “Collateral estoppel precludes relitigation of issues that were necessarily decided in prior litigation, but it operates only against those who were parties, or in privity with parties, to that prior litigation and who are thus bound by the resulting judgment. The party seeking the benefit of the doctrine, by contrast, need not have been a party to the earlier lawsuit.” ((Ibid. .)
Plaintiff asserts that Defendants cannot meet their burden for res judicata or collateral estoppel, because none of the Defendants here are parties to a settlement agreement or consent judgment with Plaintiff for the exact products at issue. (Marcus Decl. ¶¶ 2-5.) Plaintiff also asserts that there are no judgments from prior proceedings involving the batches of spices at issue from a matter involving Plaintiff and Defendants. ((Ibid. .)

Defendants counter that it would be error to decide this affirmative defense now, as Plaintiff or another private enforcer could, at any time between now and judgment, enter into a consent agreement that has preclusive effect over the spices at issue in this case. The Court agrees. Defendants note that “[a] judgment entered . . . by consent or stipulation, is as conclusive a . . . bar as a judgment rendered after trial.” ((Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065 [internal quotations omitted].) In addition, “[a] stipulated judgment may properly be given collateral estoppel effect, at least when the parties manifest an intent to be collaterally bound by its terms.” ((Ibid. [internal quotations omitted].)

Based on the foregoing, the Court denies Plaintiff’s motion for summary adjudication as to the affirmative defense of res judicata/collateral estoppel.

Fifth, Plaintiff asserts that state preemption is inapplicable to Prop 65, because State preemption only applies to local legislation. Plaintiff cites to Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1242, where the California Supreme Court found that “[s]tate preemption of local legislation is established by article XI, section 7 of the California Constitution, which provides that [a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws. In Sherwin-Williams, this court identified three types of conflict that cause preemption: A conflict exists if the local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.” (Internal quotations omitted.) Defendants do not address this point in their opposition.

Sixth, Plaintiff asserts that Defendants’ due process rights have not been violated.

“The Due Process Clause of the Fourteenth Amendment provides: [Nor] shall any State deprive any person of life, liberty, or property, without due process of law.” ((Daniels v. Williams (1986) 474 U.S. 327, 331 [internal quotations omitted].) Plaintiff asserts that there is no deprivation of life, liberty, or property here, as Prop 65 does not take away any fundamental interests or substantially interfere with life, liberty, or property. Plaintiff indicates that instead, Prop 65 adds a statutory right to a warning before Californians are exposed to chemicals known to cause cancer and/or reproductive harm. 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.” Plaintiff asserts that the public’s right-to-know and California’s interest in protecting the health and safety of its citizens outweighs the minimal, if any, interest the Defendants may have in not disclosing certain information.

Defendants counter that Plaintiff ignores the fundamental due process rights at stake, because “[n]ot only does Prop 65 violate Defendants’ procedural due process right as void-for-vagueness, but it also raises substantive due process issues: it violates Defendant’s right to freedom of expression, Rule of Law, and its Eighth Amendment protections against excessive fines and penalties.” In support of this assertion, Defendants cite to their motion for summary judgment. (Opp’n at p. 33:18-21.) As discussed in the Court’s ruling on Defendants’ motion for summary judgment, the Court found that Defendants failed to demonstrate that Prop 65 violates Defendants’ constitutional rights to due process.

With respect to the void for vagueness argument specifically, Plaintiff asserts in the motion that the void for vagueness affirmative defense is without merit. As set forth in the Court’s ruling on Defendants’ motion for summary judgment, “[i]t is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” ((Grayned v. City of Rockford (1972) 408 U.S. 104, 108.) “To satisfy the constitutional command, a statute must meet two basic requirements: (1) The statute must be sufficiently definite to provide adequate notice of the conduct proscribed; and (2) the statute must provide sufficiently definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement.” ((Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1106-1107.) As discussed in the Court’s ruling on Defendants’ motion for summary judgment, the Court did not find Prop 65 insufficiently definite so as to provide adequate notice of the conduct proscribed.

Plaintiff asserts that as to Prop 65, there is no real possibility of discriminatory enforcement given the requirement that private enforcers test the consumer product at issue to demonstrate an actual or threatened exposure before attempting to enforce Prop 65 against an alleged violator. Pursuant to 11 C.C.R , § 3100, “[a]ny notice of alleged violations provided pursuant to Health and Safety Code section 25249.7(d) in which violations of Health and Safety Code section 25249.6 are alleged shall include a Certificate of Merit. The Certificate of Merit shall be attached to, and be served with, all copies of the notice of alleged violations. A second copy of the entire notice and Certificate of Merit shall be served on the Attorney General…” Pursuant to 11 C.C.R, § 3103(a), “[w]here a sixty-day notice does not attach a copy of the Certificate of Merit meeting the requirements of subsection 3101(b), the noticing party has no authority to commence an action pursuant to Health and Safety Code section 25249.7(d).” Plaintiff also asserts that Prop 65 clearly identifies the prohibited conduct so that a person of ordinary intelligence has fair warning: “No 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 & Saf. Code, § 25249.6.) Pursuant to Health and Safety Code section 25249.8(a), “[o]n or before March 1, 1987, the Governor shall cause to be published a list of those chemicals known to the state to cause cancer or reproductive toxicity within the meaning of this chapter, and he shall cause such list to be revised and republished in light of additional knowledge at least once per year thereafter.” In their opposition, Defendants do not address the foregoing, but rather assert that Plaintiff “has not discussed the void-for-vagueness aspect of due process…” (Opp’n at p. 35:16-17.)

Based on the arguments presented by the parties, the Court finds that Plaintiff has met its burden of demonstrating that Defendants’ affirmative defense of “due process” is without merit, and that Defendants have failed to raise a triable issue of material fact thereto.

Seventh, Plaintiff asserts that equal protection of the laws is not denied through Prop 65. Under the Fourteenth Amendment to the United States Constitution, “[n]o State shall… deny to any person within its jurisdiction the equal protection of the laws.” Plaintiff asserts that the Fourteenth Amendment thus does not apply to the conduct of private parties, and that Plaintiff and other private enforcers are not deemed government actors under Prop 65.

Defendant counters that Plaintiff’s status as a private enforcer makes no difference because private enforcers do not have a private right of action, but rather may only sue “in the public interest.” (Citing to Health & Saf. Code, § 25249.7(d) [“[a]ctions pursuant to this section may be brought by a person in the public interest if both of the following requirements are met…”]; and Consumer Advocacy Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th 675, 692-693, “the statutory framework governing a Proposition 65 action affirms the representative nature of the individual’s role. An individual may sue under the Act only in the public interest; there is no provision for an individual to sue on his or her own behalf.”)

Plaintiff also asserts that although rational basis is the appropriate scrutiny level for Prop 65, the law would still pass strict scrutiny. When a governmental action infringes upon equal protection rights, the action is reviewed by courts under the strict scrutiny standard. ((Reed v. Town of Gilbert (2015) 576 U.S. 155, 163-164 [applying strict scrutiny to content-based government regulation of speech].) Such an action survives only if it furthers a compelling government interest and is narrowly tailored to achieve that interest. ((Id. at p. 171.)

As noted by Plaintiff, “government is vested with the responsibility of protecting the health, safety, and welfare of its citizens.” (United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., supra, 550 U.S. at p. 342.) Plaintiff asserts that here, protecting the health, safety, and welfare of Californians from unwitting exposures to chemicals known to cause cancer and reproductive harm is an important government interest. Plaintiff also asserts that there are no feasible, more narrowly tailored alternatives to Proposition 65. Plaintiff contends that “[t]he only way to be less restrictive would be to not warn Californians at all…” (Mot. at p. 27:20-21.)

Defendants counter that “Prop 65 does not withstand even an intermediate level of

scrutiny, much less strict scrutiny,” citing to Defendants’ motion for summary judgment. (Opp’n at p. 36:26-27.) As discussed in the Court’s ruling on Defendants’ motion for summary judgment, the Court found that Defendants did not show that Prop 65 violates Defendants’ constitutional rights to equal protection.

Based on the arguments presented, the Court finds that Plaintiff has met its burden of demonstrating that Defendants’ affirmative defense of “equal protection” is without merit, and that Defendants have failed to raise a triable issue of material fact thereto.

Eighth, Plaintiff asserts that estoppel and waiver are inapplicable. Plaintiff cites to Morgan v. International Aviation Underwriters, Inc. (1967) 250 Cal.App.2d 176, 180, where the Court of Appeal noted that “[a]lthough waiver and equitable estoppel are not always distinguished in the cases, they rest upon different legal principles. There may be an equitable estoppel where there is no waiver in the technical sense. Waiver is a voluntary relinquishment, expressly or impliedly, of a known right and depends upon the intention of one party only. Equitable estoppel is based upon the fundamental principle that one’s conduct has induced another to take such a position that he will be injured if the first party is permitted to repudiate his acts.” (Internal quotations omitted.)

Plaintiff argues that there was no waiver here because it did not intend to waive its right to seek redress in the public interest for Prop 65 violations committed by the Defendants when it entered into consent judgments and settlement agreements for products other than the batches of spices at issue in this matter. (Mot at p. 38:16-19; citing to Marcus Decl. ¶ 12.) But the Court notes that this evidence is inadmissible. (See Evid. Obj. No. 25.)

As to estoppel, Plaintiff asserts that it has not intentionally nor deliberately led any of the Defendants to believe anything about its Prop 65 violations that Plaintiff now seeks to contradict. (Mot. at p. 38:28-30; Citing to Marcus Decl., ¶ 13, which provides, inter alia, “CAG has not made any representations to the Defendants about the alleged Proposition 65 violations beyond the allegation that the batches of spices at issue violates Proposition 65.”) Defendants do not address this point in their opposition. However, as set forth above, “[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.” (Code Civ. Proc., § 437c(f)(1).) Plaintiff indicates that one of Defendants’ affirmative defenses is “Estoppel and Waiver.” (Malamphy Decl., ¶ 2, Ex. 1, emphasis added.)

Based on the foregoing, Court does not find that Plaintiff has met its burden of demonstrating that Defendants’ affirmative defense of “estoppel and waiver” is without merit.

Based on the foregoing, Plaintiff’s motion for summary judgment is denied. Plaintiff’s motion for summary adjudication is granted as to Defendants’ affirmative defenses of federal conflict preemption, First Amendment rights, commerce clause, state preemption, due process, equal protection, and void for vagueness. Plaintiff’s motion for summary adjudication is denied as to Defendants’ affirmative defense of res judicata/collateral estoppel and estoppel and waiver.

[1]The Court notes that on October 3, 2022, the Court issued an Order on Defendants’ Phase Two Combined Motion for Summary Judgment Or, In the Alternative Summary Adjudication on Statutory Affirmative Defenses on the Merits. The October 3, 2022 Order provides, inter alia, that the Court finds that Plaintiff presented sufficient evidence to raise a triable issue of material fact as to whether levels of lead and arsenic in the subject spice products fall within Prop 65’s regulatory “safe harbor.” (October 3, 2022 Order at p. 15:11-13.)

[2]In support of this assertion, Defendants cite to paragraphs 10-16 of Mr. Sala’s Declaration. Mr. Sala’s declaration does not directly state that Prop 65 warnings convey that lead and arsenic levels in Defendants’ spices exposes consumers to an immediate risk of cancer and reproductive toxicity.

[3] Defendants appear to cite to paragraph 13 of Mr. Kuszynski’s declaration in support of this assertion (see Opp’n at p. 31:8-13), but Mr. Kuszynski does not expressly indicate that costs are shifted to out of state consumers for the benefit of Californians.

consumer advocacy group, inc., et al., Plaintiff, vs. gel spice company, inc., et al. Defendants.	Case No.:	BC 665798 [c/w 19STCV24048]
	Hearing Date:	December 5, 2022
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: PHASE TWO COMBINED MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS GEL SPICE CO., INC., BIG LOT STORES, INC., GROCERY OUTLET, INC., AND TARGET CORPORATION ON ISSUES OF 1) FEDERAL PREEMPTION; 2) COMMERCE CLAUSE; 3) FIRST AMENDMENT, AND 4) EQUAL PROTECTION AND DUE PROCESS

consumer advocacy group, inc., et al., Plaintiff, vs. gel spice company, inc., et al. Defendants.	Case No.:	BC 665798 [c/w 19STCV24048]
	Hearing Date:	December 5, 2022
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION RE PHASE 2 LEGAL AFFIRMATIVE DEFENSES