Pepsi Settlement Over Alleged Carcinogen in Drinks Gets Nod

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By Julie A. Steinberg

June 29 — A class settlement calling for PepsiCo to keep the level of an alleged cancer-causing compound in soft drinks below California's Proposition 65 threshold got a tentative nod ( Sciortino v. Pepsico, Inc., 2016 BL 207301, N.D. Cal., No. 14-00478, hearing 8/25/2016 ).

Judge Edward M. Chen of the U.S. District Court for the Northern District of California also certified a settlement class and set an Aug. 25 final hearing for the deal. The agreement expands on a settlement Pepsi previously reached with California's Center for Environmental Health(43 PSLR 1102, 9/21/15).

Mary Hall and others alleged PepsiCo, Inc. failed to warn consumers that certain soft drinks contained elevated levels of 4-Methylimidazole (4-MeI), a chemical generated during the manufacture of caramel color.

The suit followed Consumer Reports' publication of test results finding that the presence of 4-MeI in some Pepsi products was greater than 29 micrograms per can or bottle, an amount triggering the warning requirements of California's Proposition 65.

PepsiCo agreed to require its caramel coloring suppliers to meet certain 4-MeI levels in products shipped for sale in the United States, ensuring the 4-MeI concentration levels won't exceed the level of 100 parts per billion, and to test the covered products pursuant to an agreed protocol.

That 100 ppb limit is below the Proposition 65 threshold level, according to court filings.

The injunctive relief is the same that PepsiCo agreed to in the California settlement. However, the new settlement will “enhance” the earlier deal by expanding its geographic scope from California to nationwide; and increasing the duration of the injunctive relief from three years to five years, the court said.

Pearson Simon & Warshaw, LLP and others represented the plaintiffs.

Gibson Dunn & Crutcher LLP represented PepsiCo.

To contact the reporter on this story: Julie A. Steinberg in Washington at

To contact the editors responsible for this story: Steven Patrick at and Jeffrey D. Koelemay at

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