SAN FRANCISCO (CN) — A federal judge preliminarily approved a class action settlement in which PepsiCo will monitor levels of a carcinogen in its soft drinks with caramel coloring.
Lead plaintiff Mary Hall accused the beverage giant of failing to warn consumers that Pepsi, Diet Pepsi and Pepsi One contain elevated levels of 4-methylimidazole, in violation of California laws.
The compound is formed during manufacturing of caramel coloring. The state listed 4-MeI on its Proposition 65 list of carcinogens in 2011, after the National Toxicology Program found that it caused lung tumors in laboratory animals, according to the state’s Office of Environmental Health Hazard Assessment.
Under California law, the amount of exposure to 4-MeI that will not cause a significant cancer risk is 29 micrograms per day.
Hall claims that Pepsi intentionally concealed that its drinks contain 4-MeI at levels above this safety threshold.
Under the proposed settlement, Pepsi agreed to require its caramel coloring suppliers to meet certain 4-MeI levels in products shipped for sale to the United States, to ensure that the carcinogen’s levels will not exceed 100 parts per billion.
The proposed limit of 100 parts per billion is significantly less than the default level of 29 micrograms per day under Prop. 65.
Pepsico also agrees to test the covered products under a protocol agreed to by the parties.
This is the same injunctive relief to which Pepsi already agreed in a state court action brought by the Center for Environmental Health, which was settled in 2015.
The new settlement expands the geographic scope of the injunction from California to nationwide and increases the duration of relief from three years to five years.
The settlement does not call for any monetary compensation. However, class members will not give up any monetary claims for damages, personal injury or wrongful death against Pepsi by participating in the injunctive settlement.
U.S. District Judge Edward Chen gave his preliminary stamp of approval to the settlement on Tuesday.
“Importantly, the settlement agreement does not attempt to limit future claims for injunctive relief; thus, if an individual is unsatisfied with 4-MeI limits required by the settlement agreement, they are not precluded from bringing a claim challenging those 4-MeI levels,” Chen wrote.
Class counsel plans to seek $500,000 in attorney fees during the final approval hearing set for Aug. 25.
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