Sciortino v. Pepsico, Inc.
108 F. Supp. 3d 780
N.D. Cal.2015Background
- Plaintiffs (Hall, Ibusuki, Ree) filed consolidated putative class actions alleging PepsiCo sold Pepsi, Diet Pepsi, and Pepsi One containing Class IV caramel color that produces 4‑MeI, a listed California carcinogen, at levels above Proposition 65’s 29 µg/day safe‑harbor.
- Consumer Reports testing (2013) allegedly showed single servings exceeding 29 µg of 4‑MeI and plaintiffs allege average consumers drink more than one serving/day, so daily exposure plausibly exceeds the safe harbor.
- Plaintiffs assert: (a) a direct Proposition 65 warning claim (brought by Hall and Ibusuki), (b) CLRA and UCL claims for misrepresentations and omissions, and (c) requests for penalties, damages, restitution, and injunctive relief.
- Pepsi moved to dismiss arguing (1) plaintiffs failed to comply with Proposition 65’s mandatory 60‑day pre‑suit notice and certificate of merit, (2) plaintiffs’ state‑law claims are preempted by the FDCA/FDA regulation, and (3) the case should be dismissed/stayed under primary jurisdiction or abstained to the pending state Proposition 65 action.
- The court found Hall’s initial complaint pleaded independent misrepresentation and not a Proposition 65 enforcement action (her later Prop 65 claim was served with proper notice), but Ibusuki’s initial complaint was essentially a Prop 65 claim filed without prior notice and his Prop 65 claim was dismissed for failure to comply with pre‑suit notice.
- The court otherwise denied Pepsi’s motion: Plaintiffs plausibly alleged exposures exceeding the safe harbor; Proposition 65 and the misrepresentation claims are not preempted; primary jurisdiction and Colorado River abstention did not warrant dismissal or stay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Pre‑suit Prop 65 notice compliance | Hall and Ibusuki later served compliant 60‑day notices before asserting Prop 65 in the CAC; initial pleading not a Prop 65 action | Ibusuki and other initial complaints were artful pleadings to avoid mandatory notice; failure to serve certificate of merit mandates dismissal | Court: Ibusuki’s Prop 65 claim dismissed for lack of proper pre‑suit notice; Hall’s Prop 65 claim survives because her initial complaint pleaded independent misrepresentation and notice preceded the Prop 65 claim in the CAC |
| Whether Plaintiffs adequately alleged exposure exceeding Prop 65 safe harbor | Allegations and studies show average consumers drink >1 twelve‑ounce serving/day; each serving allegedly >29 µg → plausible daily exposure >29 µg | Pepsi: Plaintiffs misapply Prop 65; safe harbor is a daily lifetime exposure calculation and Consumer Reports evidence does not show violation | Court: At pleading stage plaintiffs sufficiently alleged exposure above the safe harbor; merits can be litigated later |
| Federal preemption by FDCA/NLEA/Color Additive regulatory scheme | Plaintiffs: Proposition 65 warnings concern food safety and are saved from NLEA preemption; misrepresentation claims not preempted | Pepsi: Federal labeling law and FDA determinations regarding caramel color preempt state warning/labeling requirements | Court: Denied dismissal — NLEA’s express preemption does not cover Prop 65 safety warnings (savings clause §6(c)(2)); Color Additive Amendments/Delaney Clause do not preempt Prop 65; misrepresentation claims not preempted |
| Primary jurisdiction / administrative deferment to FDA | Plaintiffs: Court competent to decide misrepresentation and state‑law warning claims; FDA review ongoing but not imminent or dispositive | Pepsi: FDA is reviewing 4‑MeI and uniform regulation is needed; primary jurisdiction should defer to agency | Court: Denied — issues do not require initial agency determination, FDA action is non‑imminent and would not necessarily resolve state claims; efficiency factor not met |
| Abstention in favor of parallel state Prop 65 action (Colorado River) | Plaintiffs: Federal case broader (UCL/CLRA/class remedies) so state action will not resolve all federal issues | Pepsi: Parallel state Prop 65 suit exists and involves same core subject matter | Court: Denied — substantial doubt that state action would resolve federal claims; abstention not justified |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading standard for plausibility)
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility and factual allegations standard)
- DiPirro v. Am. Isuzu Motors, Inc., 119 Cal.App.4th 966 (Proposition 65 60‑day notice and certificate of merit is mandatory; no post‑filing cure)
- In re Vaccine Cases, 134 Cal.App.4th 438 (dismissal of UCL claims derivative of defective Prop 65 notice)
- Cel‑Tech Commc’ns v. Los Angeles Cellular Tel. Co., 20 Cal.4th 163 (limits on pleading around statutes via UCL)
- POM Wonderful LLC v. Coca‑Cola Co., 134 S. Ct. 2228 (interpretation of FDCA/NLEA preemption framework)
- Medtronic, Inc. v. Lohr, 518 U.S. 470 (presumption against preemption of state police powers)
- Wyeth v. Levine, 555 U.S. 555 (federal labeling/regulatory regime does not lightly preempt state tort failure‑to‑warn claims)
- Public Citizen v. Young, 831 F.2d 1108 (Delaney Clause legislative context and FDA safety determinations)
- Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (impossibility preemption requires physical impossibility of dual compliance)