60 Day Notice 2018-00259

Withdraw Notice Add a Complaint Add a Settlement Add a Judgment

AG Number: 
2018-00259
Notice PDF: 
PDF icon 2018-00259.pdf
Date Filed: 
02/28/2018
Noticing Party: 
Environmental Research Center, Inc.
Plaintiff Attorney: 
Aqua Terra Aeris Law Group
Alleged Violators: 
Lifestyle Evolution, Inc., individually and doing business as NuGo Nutrition
Chemicals: 
Cadmium
Lead and lead compounds
Source: 
Dietary supplements

60-Day Notice Document

Supplemental Complaint
AG Number:
2018-00259
Complaint PDF: 
PDF icon 2018-00259C5365.pdf
Date Filed:
06/08/2018
Case Name: 
Environmental Research Center v. Lifestyle Evolution, Inc.
Court Name: 
Alameda County Superior Court
Court Docket Number: 
RG 18904354
Plaintiff: 
Environmental Research Center, Inc.
Plaintiff Attorney: 
ATA Law Group
Defendant: 
Lifestyle Evolution, Inc.
Type of Claim: 
Failure to Warn
Relief Sought: 
Warning
Civil Penalty
Contact Name: 
Anthony M. Barnes
Contact Organization: 
ATA Law Group
Email Address:
amb@atalawgroup.com
Address: 
490 43rd Street, Suite 108
City, State, Zip:
Oakland, CA 94609
Phone Number:
(917) 371-8293
Civil Complaint
AG Number:
2018-00259
Complaint PDF: 
PDF icon 2018-00259C5261.pdf
Date Filed:
05/10/2018
Case Name: 
Environmental Research Center v. Lifestyle Evolution, Inc
Court Name: 
Alameda County Superior Court
Court Docket Number: 
RG 18904354
Plaintiff: 
Environmental Research Center, Inc.
Plaintiff Attorney: 
ATA Law Group
Defendant: 
Lifestyle Evolution, Inc
Type of Claim: 
Failure to Warn
Relief Sought: 
Warning
Civil Penalty
Contact Name: 
Matthew Maclear
Contact Organization: 
ATA Law Group
Email Address:
mcm@atalawgroup.com
Address: 
490 43rd Street Suite 108
City, State, Zip:
Oakland, CA 94609
Phone Number:
(415) 568-5200
Comments: 
This matter involves three NOVs, but this uploaded complaint only covers this first NOV 2018-00259, served on defendant 2/28/2018. ERC will file an Amended Complaint on June 8, 2018 covering the products noticed in NOVs 2 & 3 ( 2018-00359 NOV 2, served 3/15/2018; 2018-00525 NOV 3, served 04/06/2018) The settlement, which will also be uploaded today covers all three NOVs referenced above. Thank you
Settlement
AG Number:
2018-00259
Settlement PDF: 
PDF icon 2018-00259S6607.pdf
Settlement Date:
05/09/2018
Case Name: 
Environmental Research Center v. Lifestyle Evolution, Inc
Court Name: 
Alameda County Superior Court
Court Docket Number: 
RG 18904354
Plaintiff: 
Environmental Research Center, Inc.
Plaintiff Attorney: 
ATA Law Group
Defendant: 
Lifestyle Evolution, Inc
Injunctive Relief: 
Defendant shall be permanently enjoined from manufacturing for sale in the State of California, “Distributing into the State of California,” or directly selling in the State of California, any Covered Product which exposes a person either to a “Daily Lead Exposure Level” of more than 0.5 micrograms of lead per day or to a “Daily Cadmium Exposure Level” of more than 4.1 micrograms of cadmium per day, or both, unless it meets the warning requirements. Notwithstanding the foregoing, so long as Defendant can document the date of manufacture of a Covered Product, Covered Products manufactured prior to the Effective Date may be distributed or sold without a Warning by any person after the Effective Date without violation of this Consent Judgment. Additionally, Defendant shall be allowed until three (3) months after the Effective Date the “Compliance Date”) to use up chocolate and calcium ingredients of the sort listed in the Consent Judgment that may contain lead or cadmium, or both, that are used in one or more of the Covered Products and that are on hand as of the Effective Date (the “On-Hand Ingredients”), so long as Defendant provides documentation to ERC within thirty (30) days of the Effective Date of the name, type and amount of such On-Hand Ingredients. Covered Products made with such On-Hand Ingredients may be distributed or sold by any person after the Effective Date without a Warning without violation of this Consent Judgment.
*Non-Contingent Civil Penalty:
$ 111,466.00
Attorney(s) Fees and Costs:
$ 69,935.00
Payment in Lieu of Penalty:
$ 83,599.00  ($83,598.93 shall be distributed to ERC as an Additional Settlement Payment (“ASP”), pursuant to California Code of Regulations, title 11, sections 3203, subdivision (d) and 3204. ERC will utilize the ASP for activities that address the same public harm as allegedly caused by Defendant in this matter. These activities are detailed below and support ERC’s overarching goal of reducing and/or eliminating hazardous and toxic chemicals in dietary supplement products in California. ERC’s activities have had, and will continue to have, a direct and primary effect within the State of California because California consumers will be benefitted by the reduction and/or elimination of exposure to lead and/or cadmium in dietary supplements and/or by providing clear and reasonable warnings to California consumers prior to ingestion of the products. Based on a review of past years’ actual budgets, ERC is providing the following list of activities ERC engages in to protect California consumers through Proposition 65 citizen enforcement, along with a breakdown of how ASP funds will be utilized to facilitate those activities: (1) ENFORCEMENT (65-80%): obtaining, shipping, analyzing, and testing dietary supplement products that may contain lead and/or cadmium and are sold to California consumers. This work includes continued monitoring and enforcement of past consent judgments and settlements to ensure companies are in compliance with their obligations thereunder, with a specific focus on those judgments and settlements concerning lead and/or cadmium. This work also includes investigation of new companies that ERC does not obtain any recovery through settlement or judgment; (2) VOLUNTARY COMPLIANCE PROGRAM (10-20%): maintaining ERC’s Voluntary Compliance Program by acquiring products from companies, developing and maintaining a case file, testing products from these companies, providing the test results and supporting documentation to the companies, and offering guidance in warning or implementing a self-testing program for lead and/or cadmium in dietary supplement products; and (3) “GOT LEAD” PROGRAM (up to 5%): maintaining ERC’s “Got Lead?” Program which reduces the numbers of contaminated products that reach California consumers by providing access to free testing for lead in dietary supplement products (Products submitted to the program are screened for ingredients which are suspected to be contaminated, and then may be purchased by ERC, catalogued, sent to a qualified laboratory for testing, and the results shared with the consumer that submitted the product). ERC shall be fully accountable in that it will maintain adequate records to document and will be able to demonstrate how the ASP funds will be spent and can assure that the funds are being spent only for the proper, designated purposes described in this Consent Judgment. ERC shall provide the Attorney General, within thirty (30) days of any request, copies of documentation demonstrating how such funds have been spent. )
Total Payments:
$ 265,000.00
Will settlement be submitted to court?
Yes
Contact Name: 
Matthew Maclear
Contact Organization: 
ATA Law Group
Email Address:
mcm@atalawgroup.com
Address: 
490 43rd Street Suite 108
City, State, Zip:
Oakland, CA 94609
Phone Number:
(415) 568-5200
Comments: 
This matter involves three NOVs the first NOV was served on defendant 2/28/2018. ERC will file an Amended Complaint on June 8, 2018 covering the products noticed in NOVs 2 & 3 ( 2018-00359 NOV 2, served 3/15/2018; 2018-00525 NOV 3, served 04/06/2018) The settlement uploaded here covers all three NOVs referenced above. Thank you
Judgment
AG Number:
2018-00259
Judgment PDF: 
PDF icon 2018-00259J3904.pdf
Judgment Date:
07/24/2018
Settlement reported to AG: 
Wed, 05/09/2018
Case Name: 
Environmental Research Center v Lifestyle Evolution, Inc
Court Name: 
Alameda County Superior Court
Court Docket Number: 
RG18904354
Plaintiff: 
Environmental Research Center, Inc.
Plaintiff Attorney: 
Aqua Terra Aeris Law Group
Defendant: 
Lifestyle Evolution, Inc
Injunctive Relief: 
Warning
*Non-Contingent Civil Penalty:
$ 111,466.00
Attorney(s) Fees and Costs:
$ 69,935.00
Payment in Lieu of Penalty:
$ 83,599.00  ($83,598.93 shall be distributed to ERC as an Additional Settlement Payment (“ASP”), pursuant to California Code of Regulations, title 11, sections 3203, subdivision (d) and 3204. ERC will utilize the ASP for activities that address the same public harm as allegedly caused by Defendant in this matter. These activities are detailed below and support ERC’s overarching goal of reducing and/or eliminating hazardous and toxic chemicals in dietary supplement products in California. ERC’s activities have had, and will continue to have, a direct and primary effect within the State of California because California consumers will be benefitted by the reduction and/or elimination of exposure to lead and/or cadmium in dietary supplements and/or by providing clear and reasonable warnings to California consumers prior to ingestion of the products. Based on a review of past years’ actual budgets, ERC is providing the following list of activities ERC engages in to protect California consumers through Proposition 65 citizen enforcement, along with a breakdown of how ASP funds will be utilized to facilitate those activities: (1) ENFORCEMENT (65-80%): obtaining, shipping, analyzing, and testing dietary supplement products that may contain lead and/or cadmium and are sold to California consumers. This work includes continued monitoring and enforcement of past consent judgments and settlements to ensure companies are in compliance with their obligations thereunder, with a specific focus on those judgments and settlements concerning lead and/or cadmium. This work also includes investigation of new companies that ERC does not obtain any recovery through settlement or judgment; (2) VOLUNTARY COMPLIANCE PROGRAM (10-20%): maintaining ERC’s Voluntary Compliance Program by acquiring products from companies, developing and maintaining a case file, testing products from these companies, providing the test results and supporting documentation to the companies, and offering guidance in warning or implementing a self-testing program for lead and/or cadmium in dietary supplement products; and (3) “GOT LEAD” PROGRAM (up to 5%): maintaining ERC’s “Got Lead?” Program which reduces the numbers of contaminated products that reach California consumers by providing access to free testing for lead in dietary supplement products (Products submitted to the program are screened for ingredients which are suspected to be contaminated, and then may be purchased by ERC, catalogued, sent to a qualified laboratory for testing, and the results shared with the consumer that submitted the product). ERC shall be fully accountable in that it will maintain adequate records to document and will be able to demonstrate how the ASP funds will be spent and can assure that the funds are being spent only for the proper, designated purposes described in this Consent Judgment. ERC shall provide the Attorney General, within thirty (30) days of any request, copies of documentation demonstrating how such funds have been spent.)
Total Payments:
$ 265,000.00
Is Judgment Pursuant to Settlement?
Yes
Contact Name: 
Matthew C. Maclear
Contact Organization: 
Aqua Terra Aeris Law Group
Email Address:
mcm@atalawgroup.com
Address: 
490 43rd Street, Ste 108
City, State, Zip:
Oakland, CA 94609
Phone Number:
(415) 568-5200

* A non-contingent civil penalty is the civil penalty that must be paid pursuant to the settlement, regardless of future events or actions of the defendant. If a settlement includes a contingent penalty, the plaintiff should report the additional penalty amount when it becomes due.