60 Day Notice 2020-01292

Withdraw Notice Add a Complaint Add a Settlement Add a Judgment

AG Number: 
2020-01292
Notice PDF: 
PDF icon 2020-01292.pdf
Date Filed: 
05/28/2020
Noticing Party: 
Environmental Research Center, Inc.
Plaintiff Attorney: 
Wraith Law
Alleged Violators: 
REBBL, Inc.
Chemicals: 
Cadmium
Lead and lead compounds
Source: 
Dietary supplements

60-Day Notice Document

Supplemental Complaint
AG Number:
2020-01292
Complaint PDF: 
PDF icon 2020-01292C6880.pdf
Date Filed:
07/02/2021
Case Name: 
Environmental Research Center, Inc. v. REBBL, Inc.
Court Name: 
Alameda County Superior Court
Court Docket Number: 
RG20077165
Plaintiff: 
Environmental Research Center, Inc.
Plaintiff Attorney: 
William F. Wraith
Wraith Law
Defendant: 
REBBL, Inc.
Type of Claim: 
Failure to Warn
Relief Sought: 
Warning
Civil Penalty
Injunctive Relief
Contact Name: 
William F. Wraith
Contact Organization: 
Wraith Law
Email Address:
wraithlaw.com
Address: 
25361 Commercentre Drive, Suite 150
City, State, Zip:
Lake Forest, CA 92630
Phone Number:
(949) 452-1234
Comments: 
The First Amended Complaint also includes allegations regarding the 60-Day Notices regarding these parties, identified as AG Numbers 2020-01399, 2020-01922, and 2021-00912. No separate report was made for these additional 60-Day Notices.
Settlement
AG Number:
2020-01292
Settlement PDF: 
PDF icon 2020-01292S9653.pdf
Settlement Date:
07/02/2021
Case Name: 
Environmental Research Center, Inc. v. REBBL, Inc
Court Name: 
Alameda County Superior Court
Court Docket Number: 
RG20077165
Plaintiff: 
Environmental Research Center, Inc.
Plaintiff Attorney: 
William F. Wraith
Wraith Law
Defendant: 
REBBL, Inc.
Injunctive Relief: 
3. INJUNCTIVE RELIEF, REFORMULATION, TESTING AND WARNINGS 3.1 Beginning on the Effective Date, REBBL 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 Products that expose a person to a “Daily Lead Exposure Level” of more than 0.5 micrograms of lead per day and/or “Daily Cadmium Exposure Level” of more than 4.1 micrograms of cadmium per day unless it meets the warning requirements under Section 3.2. 3.1.1 As used in this Consent Judgment, the term, “Distributing into the State of California” shall mean to directly ship a Covered Product into California for sale in California or to sell a Covered Product to a distributor that REBBL knows or has reason to know will sell the Covered Product in California. 3.1.2 For purposes of this Consent Judgment, the “Daily Lead Exposure Level” shall be measured in micrograms, and shall be calculated using the following formula: micrograms of lead per gram of product, multiplied by grams of product per serving of the product (using the largest serving size appearing on the product label), multiplied by servings of the product per day (using the largest number of recommended daily servings appearing on the label), which equals micrograms of lead exposure per day, excluding, pursuant to Section 3.1.3, amounts of allowances of lead in the ingredients listed in Table 1 below. If the label contains no recommended daily servings, then the number of recommended daily servings shall be one. 3.1.3 In calculating the Daily Lead Exposure Level for a Covered Product, REBBL shall be allowed to deduct the amount of lead which is deemed “naturally occurring” in any ingredient listed in Table 1 that is contained in that Covered Product under the following conditions: For each year that REBBL claims entitlement to a “naturally occurring” allowance, REBBL shall provide ERC with the following information: (a) REBBL must produce to ERC a list of each ingredient in the Covered Product, and the amount, measured in grams, of each such ingredient contained therein, for which a “naturally occurring” allowance is claimed; (b) REBBL must provide ERC with documentation of laboratory testing that complies with Sections 3.4.3 and 3.4.4 and that shows the amount of lead, if any, contained in any ingredient listed in Table 1 that is contained in the Covered Product and for which REBBL intends to deduct “naturally occurring” lead; (c) If the laboratory testing reveals the presence of lead in any ingredient listed in Table 1 that is contained in the Covered Product, REBBL shall be entitled to deduct up to the full amount of the allowance for that ingredient, as listed in Table 1, but not to exceed the total amount of lead actually contained in that ingredient in the Covered Product; and (d) If the Covered Product does not contain an ingredient listed in Table 1, REBBL shall not be entitled to a deduction for “naturally occurring” lead in the Covered Product for that ingredient. The information required by Sections 3.1.3 (a) and (b) shall be provided to ERC within thirty (30) days of the Effective Date or anniversary thereof for any year that REBBL shall claim entitlement to the ”naturally occurring” allowance. TABLE 1 INGREDIENT ALLOWANCES OF AMOUNT OF LEAD Cocoa-powder Up to 1.0 micrograms/gram Chocolate Liquor Up to 1.0 micrograms/gram Cocoa Butter Up to 0.1 micrograms/gram 3.1.4 For purposes of this Consent Judgment, the “Daily Cadmium Exposure Level” shall be measured in micrograms, and shall be calculated using the following formula: micrograms of cadmium per gram of product, multiplied by grams of product per serving of the product (using the largest serving size appearing on the product label), multiplied by servings of the product per day (using the largest number of recommended daily servings appearing on the label), which equals micrograms of cadmium exposure per day. If the label contains no recommended daily servings, then the number of recommended daily servings shall be one. 3.2 Clear and Reasonable Warnings If REBBL is required to provide a warning pursuant to Section 3.1, the following warning must be utilized (“Warning”): WARNING: Consuming this product can expose you to chemicals including [lead] [and] [cadmium] which is [are] known to the State of California to cause [cancer and] birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov/food. REBBL shall use the phrase “cancer and” in the Warning if REBBL has reason to believe that the “Daily Lead Exposure Level” is greater than 15 micrograms of lead as determined pursuant to the quality control methodology set forth in Section 3.4. As identified in the brackets, the warning shall appropriately reflect whether there is lead, cadmium, or both chemicals present in each of the Covered Products, to the extent required under California regulations and law. The Warning shall be securely affixed to or printed upon the label of each Covered Product and it must be set off from other surrounding information and enclosed in a box. In addition, for any Covered Product sold over the internet, the Warning shall appear on the checkout page when a California delivery address is indicated for any purchase of any Covered Product. An asterisk or other identifying method must be utilized to identify which products on the checkout page are subject to the Warning. In no event shall any internet or website Warning be contained in or made through a link. The Warning shall be at least the same size as the largest of any other health or safety warnings also appearing on the website or on the label and the word “WARNING” shall be in all capital letters and in bold print. No statements intended to or likely to have the effect of diminishing the impact of the Warning on the average lay person shall accompany the Warning. Further no statements may accompany the Warning that state or imply that the source of the listed chemical has an impact on or results in a less harmful effect of the listed chemical. REBBL must display the above Warning with such conspicuousness, as compared with other words, statements or designs on the label, or on its website, if applicable, to render the Warning likely to be read and understood by an ordinary individual under customary conditions of purchase or use of the product. For purposes of this Consent Judgment, the term “label” means a display of written, printed or graphic material that is printed on or affixed to a Covered Product or its immediate container or wrapper. 3.3 Conforming Covered Products A Conforming Covered Product is a Covered Product for which the “Daily Lead Exposure Level” is no greater than 0.5 micrograms of lead per day and/or “Daily Cadmium Exposure Level” is no more than 4.1 micrograms of cadmium per day as determined by the exposure methodology set forth in Section 3.1.2 and the quality control methodology described in Section 3.44. 3.4 Testing and Quality Control Methodology 3.4.1 Beginning within one year of the Effective Date, REBBL shall arrange for lead and cadmium testing of the Covered Products at least once a year for a minimum of five consecutive years by arranging for testing of three (3) randomly selected samples of each of the Covered Products, in the form intended for sale to the end-user, which REBBL intends to sell or is manufacturing for sale in California, directly selling to a consumer in California or “Distributing into the State of California.” If tests conducted pursuant to this Section demonstrate that no Warning is required for a Covered Product during each of five consecutive years, then the testing requirements of this Section will no longer be required as to that Covered Product. However, if during or after the five-year testing period, REBBL changes ingredient suppliers for any of the Covered Products and/or reformulates any of the Covered Products, REBBL shall test that Covered Product annually for at least four (4) consecutive years after such change is made. 3.4.2 For purposes of measuring the “Daily Lead Exposure Level” and/or “Daily Cadmium Exposure Level,” the highest lead and/or cadmium detection result of the three (3) randomly selected samples of the Covered Products will be controlling. 3.4.3 All testing pursuant to this Consent Judgment shall be performed using a laboratory method that complies with the performance and quality control factors appropriate for the method used, including limit of detection and limit of quantification, sensitivity, accuracy and precision that meets the following criteria: Inductively Coupled Plasma-Mass Spectrometry (“ICP-MS”) achieving a limit of quantification of less than or equal to 0.005 mg/kg. 3.4.4 All testing pursuant to this Consent Judgment shall be performed by an independent third party laboratory certified by the California Environmental Laboratory Accreditation Program or an independent third-party laboratory that is registered with the United States Food & Drug Administration. 3.4.5 Nothing in this Consent Judgment shall limit REBBL’s ability to conduct, or require that others conduct, additional testing of the Covered Products, including the raw materials used in their manufacture. 3.4.6 Within thirty (30) days of ERC’s written request, REBBL shall deliver lab reports obtained pursuant to Section 3.4 to ERC. REBBL shall retain all test results and documentation for a period of five years from the date of each test.
*Non-Contingent Civil Penalty:
$ 150,000.00
Attorney(s) Fees and Costs:
$ 37,612.00
Payment in Lieu of Penalty:
$ 112,388.00  (Some Amounts above rounded. Actual amounts: Civ Pen.$150,000.00, Atty Fees & Costs: $37,612.20, ASP: $112,387.80. Pursuant to paragraph 4.4, $112,387.80 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:
$ 300,000.00
Will settlement be submitted to court?
Yes
Contact Name: 
William
Contact Organization: 
Wraith
Email Address:
wraithlaw@earthlink.net
Address: 
25361 Commercentre Drive, Suite 150
City, State, Zip:
Lake Forest, CA 92630
Phone Number:
(949) 452-1234
Comments: 
Settlement is also as to the 60-Day Notices regarding these parties, identified as AG Numbers 2020-01399, 2020-01922, and 2021-00912. No separate report was made for settlement of these additional 60-Day Notices.
Judgment
AG Number:
2020-01292
Judgment PDF: 
PDF icon 2020-01292J4711.pdf
Judgment Date:
10/01/2021
Settlement reported to AG: 
Fri, 07/02/2021
Case Name: 
Environmental Research Center, Inc. v. REBBL, Inc
Court Name: 
Alameda County Superior Court
Court Docket Number: 
RG20077165
Plaintiff: 
Environmental Research Center, Inc.
Plaintiff Attorney: 
William F. Wraith, Esq.
Wraith Law
Defendant: 
REBBL, Inc.
Injunctive Relief: 
3. INJUNCTIVE RELIEF, REFORMULATION, TESTING AND WARNINGS 3.1 Beginning on the E!ective Date, REBBL 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 Products that expose a person to a “Daily Lead Exposure Level” of more than 0.5 micrograms of lead per day and/or “Daily Cadmium Exposure Level” of more than 4.1 micrograms of cadmium per day unless it meets the warning requirements under Section 3.2. 3.1.1 As used in this Consent Judgment, the term, “Distributing into the State of California” shall mean to directly ship a Covered Product into California for sale in California or to sell a Covered Product to a distributor that REBBL knows or has reason to know will sell the Covered Product in California. 3.1.2 For purposes of this Consent Judgment, the “Daily Lead Exposure Level” shall be measured in micrograms, and shall be calculated using the following formula: micrograms of lead per gram of product, multiplied by grams of product per serving of the product (using the largest serving size appearing on the product label), multiplied by servings of the product per day (using the largest number of recommended daily servings appearing on the label), which equals micrograms of lead exposure per day, excluding, pursuant to Section 3.1.3, amounts of allowances of lead in the ingredients listed in Table 1 below. If the label contains no recommended daily servings, then the number of recommended daily servings shall be one. 3.1.3 In calculating the Daily Lead Exposure Level for a Covered Product, REBBL shall be allowed to deduct the amount of lead which is deemed “naturally occurring” in any ingredient listed in Table 1 that is contained in that Covered Product under the following conditions: For each year that REBBL claims entitlement to a “naturally occurring” allowance, REBBL shall provide ERC with the following information: (a) REBBL must produce to ERC a list of each ingredient in the Covered Product, and the amount, measured in grams, of each such ingredient contained therein, for which a “naturally occurring” allowance is claimed; (b) REBBL must provide ERC with documentation of laboratory testing that complies with Sections 3.4.3 and 3.4.4 and that shows the amount of lead, if any, contained in any ingredient listed in Table 1 that is contained in the Covered Product and for which REBBL intends to deduct “naturally occurring” lead; (c) If the laboratory testing reveals the presence of lead in any ingredient listed in Table 1 that is contained in the Covered Product, REBBL shall be entitled to deduct up to the full amount of the allowance for that ingredient, as listed in Table 1, but not to exceed the total amount of lead actually contained in that ingredient in the Covered Product; and (d) If the Covered Product does not contain an ingredient listed in Table 1, REBBL shall not be entitled to a deduction for “naturally occurring” lead in the Covered Product for that ingredient. The information required by Sections 3.1.3 (a) and (b) shall be provided to ERC within thirty (30) days of the E!ective Date or anniversary thereof for any year that REBBL shall claim entitlement to the ”naturally occurring” allowance. TABLE 1 INGREDIENT ALLOWANCES OF AMOUNT OF LEAD Cocoa-powder Up to 1.0 micrograms/gram Chocolate Liquor Up to 1.0 micrograms/gram Cocoa Butter Up to 0.1 micrograms/gram 3.1.4 For purposes of this Consent Judgment, the “Daily Cadmium Exposure Level” shall be measured in micrograms, and shall be calculated using the following formula: micrograms of cadmium per gram of product, multiplied by grams of product per serving of the product (using the largest serving size appearing on the product label), multiplied by servings of the product per day (using the largest number of recommended daily servings appearing on the label), which equals micrograms of cadmium exposure per day. If the label contains no recommended daily servings, then the number of recommended daily servings shall be one. 3.2 Clear and Reasonable Warnings If REBBL is required to provide a warning pursuant to Section 3.1, the following warning must be utilized (“Warning”): WARNING: Consuming this product can expose you to chemicals including [lead] [and] [cadmium] which is [are] known to the State of California to cause [cancer and] birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov/food. REBBL shall use the phrase “cancer and” in the Warning if REBBL has reason to believe that the “Daily Lead Exposure Level” is greater than 15 micrograms of lead as determined pursuant to the quality control methodology set forth in Section 3.4. As identi"ed in the brackets, the warning shall appropriately re#ect whether there is lead, cadmium, or both chemicals present in each of the Covered Products, to the extent required under California regulations and law. The Warning shall be securely a$xed to or printed upon the label of each Covered Product and it must be set o! from other surrounding information and enclosed in a box. In addition, for any Covered Product sold over the internet, the Warning shall appear on the checkout page when a California delivery address is indicated for any purchase of any Covered Product. An asterisk or other identifying method must be utilized to identify which products on the checkout page are subject to the Warning. In no event shall any internet or website Warning be contained in or made through a link. The Warning shall be at least the same size as the largest of any other health or safety warnings also appearing on the website or on the label and the word “WARNING” shall be in all capital letters and in bold print. No statements intended to or likely to have the e!ect of diminishing the impact of the Warning on the average lay person shall accompany the Warning. Further no statements may accompany the Warning that state or imply that the source of the listed chemical has an impact on or results in a less harmful e!ect of the listed chemical. REBBL must display the above Warning with such conspicuousness, as compared with other words, statements or designs on the label, or on its website, if applicable, to render the Warning likely to be read and understood by an ordinary individual under customary conditions of purchase or use of the product. For purposes of this Consent Judgment, the term “label” means a display of written, printed or graphic material that is printed on or a$xed to a Covered Product or its immediate container or wrapper. 3.3 Conforming Covered Products A Conforming Covered Product is a Covered Product for which the “Daily Lead Exposure Level” is no greater than 0.5 micrograms of lead per day and/or “Daily Cadmium Exposure Level” is no more than 4.1 micrograms of cadmium per day as determined by the exposure methodology set forth in Section 3.1.2 and the quality control methodology described in Section 3.44. 3.4 Testing and Quality Control Methodology 3.4.1 Beginning within one year of the E!ective Date, REBBL shall arrange for lead and cadmium testing of the Covered Products at least once a year for a minimum of "ve consecutive years by arranging for testing of three (3) randomly selected samples of each of the Covered Products, in the form intended for sale to the end-user, which REBBL intends to sell or is manufacturing for sale in California, directly selling to a consumer in California or “Distributing into the State of California.” If tests conducted pursuant to this Section demonstrate that no Warning is required for a Covered Product during each of "ve consecutive years, then the testing requirements of this Section will no longer be required as to that Covered Product. However, if during or after the "ve-year testing period, REBBL changes ingredient suppliers for any of the Covered Products and/or reformulates any of the Covered Products, REBBL shall test that Covered Product annually for at least four (4) consecutive years after such change is made. 3.4.2 For purposes of measuring the “Daily Lead Exposure Level” and/or “Daily Cadmium Exposure Level,” the highest lead and/or cadmium detection result of the three (3) randomly selected samples of the Covered Products will be controlling. 3.4.3 All testing pursuant to this Consent Judgment shall be performed using a laboratory method that complies with the performance and quality control factors appropriate for the method used, including limit of detection and limit of quanti"cation, sensitivity, accuracy and precision that meets the following criteria: Inductively Coupled Plasma-Mass Spectrometry (“ICP-MS”) achieving a limit of quanti"cation of less than or equal to 0.005 mg/kg. 3.4.4 All testing pursuant to this Consent Judgment shall be performed by an independent third party laboratory certi"ed by the California Environmental Laboratory Accreditation Program or an independent third- party laboratory that is registered with the United States Food & Drug Administration. 3.4.5 Nothing in this Consent Judgment shall limit REBBL’s ability to conduct, or require that others conduct, additional testing of the Covered Products, including the raw materials used in their manufacture. 3.4.6 Within thirty (30) days of ERC’s written request, REBBL shall deliver lab reports obtained pursuant to Section 3.4 to ERC. REBBL shall retain all test results and documentation for a period of "ve years from the date of each test.
*Non-Contingent Civil Penalty:
$ 150,000.00
Attorney(s) Fees and Costs:
$ 37,612.00
Payment in Lieu of Penalty:
$ 112,388.00  (Some Amounts above rounded. Actual amounts: Civ Pen.$150,000.00, Atty Fees & Costs: $37,612.20, ASP: $112,387.80. Pursuant to paragraph 4.4, $112,387.80 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 e!ect within the State of California because California consumers will be bene"tted 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 speci"c 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 "le, testing products from these companies, providing the test results and supporting documentation to the companies, and o!ering 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 quali"ed 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:
$ 300,000.00
Is Judgment Pursuant to Settlement?
Yes
Contact Name: 
William F. Wraith
Contact Organization: 
Wraith Law
Email Address:
wraithlaw@earthlink.net
Address: 
25361 Commercentre Drive, Suite 150
City, State, Zip:
Lake Forest, CA 92630
Phone Number:
(949) 452-1234

* 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.