Facts

Environmental Health Advocates, Inc. (EHA) is a California corporation seeking to promote awareness of exposure to toxic chemicals and improve human health by reducing or eliminating hazardous substances contained in consumer products. Jody's Inc. is a Virginia business that employs ten or more individuals and sells food products in California, including Gourmet flavored popcorn. Under Proposition 65, acrylamide, a known carcinogen, is listed as a chemical known to cause cancer, birth defects, and other reproductive harm. On August 17, 2021, EHA served Jody's, Amazon.com, the California Attorney General, and all other required public enforcement agencies with a 60-day notice of violation of Proposition 65, alleging that Jody's had violated the Proposition by failing to sufficiently warn consumers in California of the health hazards associated with exposure to acrylamide contained in Jody's Gourmet Popcorn. No public enforcer has commenced or otherwise prosecuted an action to enforce the violation alleged in the notice. On February 16, 2022, EHA filed a representative complaint against Jody's for the alleged violations of Proposition 65, seeking permanent and preliminary injunctive relief compelling defendants to sufficiently warn California consumers and $1 million in civil penalties.

PLAINTIFF'S CONTENTIONS: Plaintiff contended that Jody's imported, manufactured, sold, and distributed for sale Jody's Gourmet Popcorn, which contained dangerous levels of acrylamide, and did so without providing a sufficient health hazard warning as required by Proposition 65 and related regulations. Further, plaintiff argued that Jody's knew and intended that the customers will ingest the products containing acrylamide. Moreover, plaintiff maintained that individuals exposed to acrylamide contained in the products through direct ingestion resulting from reasonably foreseeable use of the products have suffered and continue to suffer irreparable harm.

DEFENDANTS' CONTENTIONS: Defendants denied all material factual and legal allegations in the notice and complaint and maintained that all of the product it has manufactured, imported, sold, or distributed for sale in California have been and are in compliance with all laws.

Result

The case settled. Jody's will pay $50,000 and agreed that all Gourmet popcorn that it distributes in California will not exceed 281 parts per billion for acrylamide unless the products comply with the clear and reasonable warning requirements set out in Proposition 65.