Brad Van Patten v. Dare Foods, Inc.
2.1 As of the Effective Date, and continuing thereafter, Dare, with respect to the Products as defined herein which Dare elects to manufacture, import, distribute, sell, or offer for sale in California, shall take any and all necessary measures to ensure that acrylamide levels in a Product are, on average, kept below that requiring a cancer warning under Proposition 65 based on an average consumer’s level and frequency of consumption of crackers and a 1 x 10-5 cancer risk for acrylamide based on scientific evidence equivalent or better in quality to that which formed the basis for the Proposition 65 listing of acrylamide as a carcinogen.
2.2 Dare may establish compliance with the requirement set forth in Section 2.1 by averaging acrylamide concentration level test results derived from multiple samples of the Products, or one or more composited samples drawn randomly from the Products, on an annual basis. An average acrylamide level less than or equivalent to 350 parts per billion shall be deemed to meet the requirement set forth in Section 2.1, but shall not prejudice Dare from establishing that an alternative acrylamide concentration level is more appropriate based on the criteria set forth in Section 2.1 and the Proposition 65 regulations. Such acrylamide testing shall be performed by Eurofins, Silliker, KPrime or another accredited laboratory using either:
1. GC/MS (Gas Chromatograph/Mass Spectrometry),
2. LC-MS/MS (Liquid Chromatograph-Mass Spectrometry), or
3. any other testing method agreed upon by the Parties.
After annual testing is completed, Dare shall provide written confirmation to counsel for Van Patten that it has complied with the requirements of this Section 2. Dare’s monitoring obligation shall terminate on the second anniversary of the Effective Date.