Dr. Whitney Leeman has won an important victory against a defendant that supplies an ingredient to food and beverage manufacturers. A Court recently ruled that her Proposition 65 action against a supplier, which does not manufacture the food and beverage products sold to consumers, but whose product is contained in such food and beverage products, is warranted under Proposition 65.
On November 20, 2013, the San Francisco Superior Court rejected arguments attacking the viability of Dr. Whitney Leeman’s Proposition 65 enforcement action against caramel color supplier Sethness Products Company (“Sethness”). Dr. Leeman filed this citizen enforcement action against Sethness, one of the largest manufacturers of caramel color in the world, alleging that Sethness had sold caramel color containing 4-Methylimidazole (“4-MEI”) without providing a warning to its customers, who then used the caramel color containing 4-MEI in food and beverage products offered for sale to consumers in California, such as Sierra Brand Premium Products Imitation Maple Flavor (“Sierra Maple Flavor”).
Sethness argued that Dr. Leeman’s complaint was not authorized by Proposition 65 because the example of the product identified by Dr. Leeman, Sierra Maple Flavor, was not a product made by Sethness, and that the caramel color made by Sethness is a commercial product, not a consumer product. The Court rejected this argument, as well as the arguments that Sethness did not know which of its caramel color products were used in the Sierra Maple Flavor product, or which food and beverage products used Sethness’s caramel color containing 4-MEI, instead of Sethness’s caramel color without 4-MEI.
Sethness has been waging an unsuccessful “scorched earth” campaign in this case, in which the motions rejected by the Court on November 20 are just the latest effort. Sethness even argued that it was a violation of regulations for Dr. Leeman to provide her attorneys’ contact information in her 60-Day Notices of Violation of Proposition 65 that she served on Sethness in June 2013, rather than her own contact information, which the Court also rejected. In addition to these motions, Sethness also unsuccessfully challenged the application of one of Dr. Leeman’s attorneys, who is based in New York, to be admitted on a limited basis to appear for Dr. Leeman in this case. Sethness’s aggressive tactics, which have not impressed the Court thus far, have only served to drive up the attorneys’ fees and costs incurred on both sides.
The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years.
