60 Day Notice 2018-00130

Withdraw Notice Add a Complaint Add a Settlement Add a Judgment

AG Number: 
2018-00130
Notice PDF: 
PDF icon 2018-00130.pdf
Date Filed: 
02/02/2018
Noticing Party: 
Environmental Research Center, Inc.
Plaintiff Attorney: 
Matthew Maclear
Alleged Violators: 
Tone It Up, Inc.
Chemicals: 
Lead and lead compounds
Source: 
Dietary supplements

60-Day Notice Document

Civil Complaint
AG Number:
2018-00130
Complaint PDF: 
PDF icon 2018-00130C5221.pdf
Date Filed:
04/16/2018
Case Name: 
ENVIRONMENTAL RESEARCH CENTER, INC v. TONE IT UP, LLC
Court Name: 
Alameda County Superior Court
Court Docket Number: 
RG18900999
Plaintiff: 
Environmental Research Center, Inc.
Plaintiff Attorney: 
Aqua Terra Aeris Law Group
Defendant: 
TONE IT UP, LLC
TONE IT UP, INC
Type of Claim: 
Failure to Warn
Relief Sought: 
Warning
Civil Penalty
Contact Name: 
Anthony M. Barnes
Contact Organization: 
Aqua Terra Aeris Law Group
Email Address:
amb@atalawgroup.com
Address: 
858 San Pablo Ave. 115B
City, State, Zip:
Albany , CA 94706
Phone Number:
(917) 371-8293
Comments: 
This complaint covers two NOVs the first issue to TONE IT UP, LLC, 2017-02520.pdf, and the Second Issued to TONE IT UP, INC. 2018-00130.pdf. The second entity was unknown to ERC at the time of issuance of the first NOV. Both NOVs are attached to the uploaded complaint
Settlement
AG Number:
2018-00130
Settlement PDF: 
PDF icon 2018-00130S6548.pdf
Settlement Date:
03/16/2018
Case Name: 
ENVIRONMENTAL RESEARCH CENTER, INC v. TONE IT UP, LLC
Court Name: 
Alameda County Superior Court
Court Docket Number: 
RG18900999
Plaintiff: 
Environmental Research Center, Inc.
Plaintiff Attorney: 
Aqua Terra Aeris Law Group
Defendant: 
TONE IT UP, LLC
TONE IT UP, INC
Injunctive Relief: 
Beginning on the Effective Date, TIU 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 which expose a person to a “Daily Lead Exposure Level” of more than 0.5 micrograms of lead per day unless it meets the warning requirements.
*Non-Contingent Civil Penalty:
$ 34,106.00
Attorney(s) Fees and Costs:
$ 35,315.00
Payment in Lieu of Penalty:
$ 25,579.00  ($25578.91 shall be distributed to ERC as an Additional Settlement Payment 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 Defendants in this matter. ERC represents that 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 contends that its activities have had, and will continue to have, a direct and primary effect within the State of California because California consumers will be benefited by the reduction and/or elimination of exposure to lead in dietary supplements and/or by providing clear and reasonable warnings to California consumers prior to ingestion of the products. Based on past years’ actual budgets, ERC represents that it 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 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. 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 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:
$ 95,000.00
Will settlement be submitted to court?
Yes
Contact Name: 
Anthony Barnes
Contact Organization: 
ATA Law Group
Email Address:
amb@atalawgroup.com
Address: 
828 San Pablo Ave, Suite 115B
City, State, Zip:
Albany, CA 94706
Phone Number:
917-371-8293
Comments: 
This consent judgement covers two NOVs the first issue to TONE IT UP, LLC, 2017-02520.pdf, and the Second Issued to TONE IT UP, INC. 2018-00130.pdf. The second entity was unknown to ERC at the time of issuance of the first NOV. Both NOVs are attached to the uploaded complaint, done previously, and to the CJ submitted here.
Judgment
AG Number:
2018-00130
Judgment PDF: 
PDF icon 2018-00130J3879.pdf
Judgment Date:
07/10/2018
Settlement reported to AG: 
Fri, 03/16/2018
Case Name: 
ENVIRONMENTAL RESEARCH CENTER, INC v. TONE IT UP, LLC
Court Name: 
Alameda County Superior Court
Court Docket Number: 
RG18900999
Plaintiff: 
Environmental Research Center, Inc.
Plaintiff Attorney: 
Aqua Terra Aeris Law Group
Defendant: 
TONE IT UP, LLC
TONE IT UP, INC
Injunctive Relief: 
Beginning on the Effective Date, TIU 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 which expose a person to a “Daily Lead Exposure Level” of more than 0.5 micrograms of lead per day unless it meets the warning requirements.
*Non-Contingent Civil Penalty:
$ 34,106.00
Attorney(s) Fees and Costs:
$ 35,315.00
Payment in Lieu of Penalty:
$ 25,579.00  ($25578.91 shall be distributed to ERC as an Additional Settlement Payment 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 Defendants in this matter. ERC represents that 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 contends that its activities have had, and will continue to have, a direct and primary effect within the State of California because California consumers will be benefited by the reduction and/or elimination of exposure to lead in dietary supplements and/or by providing clear and reasonable warnings to California consumers prior to ingestion of the products. Based on past years’ actual budgets, ERC represents that it 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 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. 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 ordering guidance in warning or implementing a self-testing program for lead 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 Genera , within thirty days of any request, copies of documentation demonstrating how such funds have been spent.)
Total Payments:
$ 95,000.00
Is Judgment Pursuant to Settlement?
Yes
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

* 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.