Physicians Committee for Responsible Medicine v. KFC Corp.
168 Cal. Rptr. 3d 334
Cal. Ct. App.2014Background
- PCRM filed Proposition 65 suits against multiple chain restaurants alleging grilled chicken cooking produces PhIP (a listed carcinogen) and that defendants failed to give "clear and reasonable" warnings. PCRM sought injunctive relief, civil penalties, and declaratory relief.
- In an earlier appeal (PCRM I), the Court of Appeal held the Proposition 65 "Safe Harbor" warning language is presumptively clear and reasonable and not preempted; plaintiffs cannot force a more targeted grilled-chicken-specific warning where the Safe Harbor sign is used.
- PCRM sued KFC and refiled against McDonald’s-related defendants, alleging (in various iterations) that defendants either did not post the Safe Harbor warning in all purchase/drive‑thru areas or posted modified warnings (e.g., referencing acrylamide) that rendered the Safe Harbor warning not clear and reasonable.
- Trial court repeatedly sustained demurrers with leave to amend, but ultimately sustained demurrers to the second amended complaints without leave to amend, concluding PCRM’s pre‑suit 60‑day notices and certificates of merit were defective because PCRM lacked adequate investigation showing defendants failed to post compliant warnings during the relevant statutory periods.
- The court also found many of PCRM’s complaints internally inconsistent (shifting allegations about what warnings were posted) and that modifications referencing acrylamide did not necessarily defeat the Safe Harbor warning’s presumptive adequacy. PCRM appealed; the Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was PCRM’s 60‑day notice and supporting certificate of merit adequate? | PCRM asserted it had sufficient expert consultation and factual basis to certify a reasonable meritorious case against defendants for failing to warn of PhIP exposure. | Defendants argued PCRM lacked pre‑suit factual investigation showing warnings were missing or noncompliant; certificates of merit were therefore defective. | Held: Certificates/notices were defective — PCRM admitted it lacked requisite pre‑suit investigation; demurrers properly sustained. |
| Could PCRM require warnings specifically naming grilled chicken where Safe Harbor warnings were posted? | PCRM argued Safe Harbor warnings were inadequate to inform consumers about PhIP in grilled chicken and sought more targeted language. | Defendants relied on PCRM I holding that the Safe Harbor warning is presumptively clear and reasonable and suffices. | Held: PCRM cannot compel grilled‑chicken‑specific warnings where the Safe Harbor language is used; prior decision controls. |
| Were amendments alleging missing warnings in drive‑thru/takeaway areas permissible given notice to Attorney General? | PCRM contended lack of signs in all purchase areas supported claims and could be alleged. | Defendants argued such theories were not in the original notice to the AG and therefore outside the scope of permissible amendment. | Held: Allegations about multiple locations/drive‑thru areas were struck as outside PCRM’s notice; amendments disallowed. |
| Did supplemental language about acrylamide render Safe Harbor warnings noncompliant? | PCRM claimed added "surplus text" referencing acrylamide or a nutrition guide made the Safe Harbor warning misleading and not presumptively clear and reasonable. | Defendants maintained such supplementation did not necessarily defeat the Safe Harbor warning’s compliance. | Held: Court found acrylamide references did not automatically negate compliance; PCRM failed to plead facts showing the supplemented warnings were not clear and reasonable. |
Key Cases Cited
- Smiley v. Citibank, 11 Cal.4th 138 (California Supreme Court) (standard of review for demurrer/judgment on the pleadings)
- Blatty v. New York Times Co., 42 Cal.3d 1033 (California Supreme Court) (abuse of discretion standard for denial of leave to amend; striking pleadings)
- Blank v. Kirwan, 39 Cal.3d 311 (California Supreme Court) (rule on sustaining demurrer without leave to amend—reasonable possibility test)
- DiPirro v. American Isuzu Motors Inc., 119 Cal.App.4th 966 (California Court of Appeal) (purpose and effect of Proposition 65 certificate of merit; discouraging frivolous suits)
- In re Vaccine Cases, 134 Cal.App.4th 438 (California Court of Appeal) (certificate-of-merit requirements and consequences)
- Center for Self-Improvement & Community Development v. Lennar Corp., 173 Cal.App.4th 1543 (California Court of Appeal) (contents and purpose of certificate of merit under Prop. 65)
- Fassberg Construction Co. v. Housing Authority of City of Los Angeles, 152 Cal.App.4th 720 (California Court of Appeal) (judicial admissions by counsel may bind party)