California Safe Drinking Water and Toxic Enforcement Act of 1986; The Sky Is Falling!

Plaintiff, who describes itself as a nonprofit organization “committed to promoting a safe and healthful diet and to protecting consumers from food and drink that are dangerous or unhealthful,” filed an action seeking injunctive and declaratory relief and civil penalties against seven chain restaurants alleging their grilled chicken created a chemical called PhIP, which appears on California’s list of carcinogenic chemicals. According to the complaint, under the California Safe Drinking Water and Toxic Enforcement Act of 1986 [Health and Safety Code section 25249; Proposition 65], a “clear and reasonable warning” was required to be given to consumers. The implementing regulation for the statute requires that there be a ‘“reasonable and meritorious case for the private action’ [and] requires not only documentation of exposure to a listed chemical, but a reasonable basis for concluding that the entire action has merit. The certifier must have a basis to conclude that there is merit to each element of the action on which the plaintiff will have the burden of proof.” (Cal. Code Regs., Title 11, § 3101, subd. (a).) The trial court sustained defendants’ demurrer without leave to amend. The appellate court affirmed, agreeing with the trial court that plaintiff’s certificates were inadequate. (Physicians Committee for Responsible Medicine v. Applebee’s International, Inc.  (Cal. App. Second Dist., Div. 1; February 27, 2014) 224 Cal.App.4th 166, [168 Cal.Rptr.3d 334].)