Settlement Date:
12/03/2018
Case Name:
Environmental Research Center Inc. vs. Divine Health, Inc.
Court Name:
Alameda County Superior Court - Hayward
Plaintiff:
Environmental Research Center, Inc.
Plaintiff Attorney:
Ryan Hoffman
Michael Freund
Defendant:
Divine Health, Inc., individually and doing business as Divine Health Nutritional Products
Injunctive Relief:
Beginning six (6) months after the effective date of the Consent Judgment, Divine Health 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 product covered by the Consent Judgment which expose a person to more than 0.5 micrograms of lead per day and/or more than 4.1 micrograms of cadmium per day unless it meets the warning requirements under Section 3.2 of the Consent Judgment.
*Non-Contingent Civil Penalty:
$ 9,477.00
Attorney(s) Fees and Costs:
$ 33,415.00
Payment in Lieu of Penalty:
$ 7,108.00 ($7,107.82 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 days of any request, copies of documentation demonstrating how such funds have been spent.
)
Total Payments:
$ 50,000.00
Will settlement be submitted to court?
Contact Organization:
Michael Freund & Associates
Address:
1919 Addison Street, Suite 105
City, State, Zip:
Berkeley, CA 94118
Phone Number:
(510) 540-1992
