Pepsi Sued in Consumer Class Action for Failure to Warn of Cancer-Causing Chemicals in Soft Drinks

On January 23, 2014, Thamar Santisteban Cortina filed a class action lawsuit against Pepsico, Inc., in San Diego federal court (Case No. 3:14cv168), accusing the soft drink giant of using dangerous chemicals in Pepsi’s caramel coloring without warning consumers.

Cortina alleges that Pepsi soft drinks contain dangerous levels of the carcinogen 4-methylimidazole (“-MeI”), an impurity in the caramel coloring used in the soft drinks. According to a study by the National Toxicology Program, laboratory animals developed significant increases in cancerous lung tumors after exposure to 4-MeI. California law requires manufacturers of beverages containing more than 29 micrograms of 4-MeI per 12-ounce serving to include “clear and reasonable” warning labels. The lawsuit alleges that Pepsi beverages containing harmful levels of 4-MeI do not contain the warning labels required by Proposition 65 and that Cortina and other California consumers would not have purchased the beverages had they known they contained carcinogens.

This lawsuit coincides with a January 23, 2014, Consumer Reports article, reporting that Pepsi, Diet Pepsi, and Pepsi One beverages purchased in California each contained more than 29 micrograms of 4-MeI per 12-ounce serving. Pepsico responded by stating that consumers who drink diet sodas generally drink less than a third of a 12-ounce can per day, and therefore the soft drinks do not require cancer-risk warning labels, even if they contain more than 29 micrograms of 4-MeI per can. Consumer Reports has alerted the California Attorney General’s office and the FDA of their findings. According to Consumer Reports, “the FDA said it does not believe that 4-MeI from caramel color at levels currently in food pose a risk. However, they appreciated Consumer Reports’ tests and are currently doing their own tests of foods, including sodas, for 4-MeI.”

Cortina has also filed a separate but similar lawsuit against Goya Foods, Inc. in San Diego federal Court (Case No. 3:14cv169), alleging the soft drink “Malta Goya” contains more than 29 micrograms of 4-MeI per 12-ounce serving without cancer-risk warning labels. Cortina alleges that both Pepsico and Goya knew about the risks associated with 4-MeI bust deliberately concealed them from consumers. Both lawsuits allege negligence, false advertising, misrepresentations, and violations of the California Unfair Competition Law and Consumer Legal Remedies Act for failure to warn consumers of unsafe levels of 4-MeI.

If you believe you have purchased a product containing harmful ingredients or have purchased a product based upon false advertising, you may be entitled to relief. Please call Khorrami Boucher Sumner Sanguinetti, LLP for a confidential consultation.