Case Name:
Consumer Advocacy Group v. Abacus Business Capital, Inc.
Court Name:
Alameda County Superior Court
Plaintiff:
Consumer Advocacy Group, Inc.
Defendant:
CENTURY PACIFIC NORTH AMERICA ENTERPRISE, INC.
CENTURY PACIFIC FOOD, INC.
Injunctive Relief:
3.1 After the Effective Date, Defendants shall not manufacture for sale in California,
any Covered Products that exceed the levels of Lead and Cadmium (“reformulation level(s)”)
specified in sections 3.1.1 and 3.1.2 below unless Proposition 65 compliant warnings are
provided as set forth in the following paragraphs.
3.1.1 Lead: an exposure of no more than 0.5 micrograms of Lead based on a single
serving of the Covered Product per day. For purposes of assessing compliance with this
reformulation level, the exposure shall be calculated by multiplying the recommended
product label serving size of the Covered Products by the concentration of Lead in the
Covered Products. 3.1.2 Cadmium: an exposure of no more than 4.1 micrograms of Cadmium based
on a single serving of the Covered Product per day. For purposes of assessing compliance
with this reformulation level, the exposure shall be calculated by multiplying the
recommended product label serving size of the Covered Products by the concentration of
Cadmium in the Covered Products. 3.2 For any Covered Products that exceed the reformulation level of Listed
Chemicals set forth above that are manufactured for distribution and/or sale into California after
the Effective Date, Defendants must provide a Proposition 65 compliant warning for the Covered Products as pursuant to Proposition 65 and its implementing regulations as set forth below. The
language of the warnings and method for providing any warnings for the Covered Products shall
be compliant with Title 27, California Code of Regulations, § 25600, et seq. and with Title 27,
California Code of Regulations, § 25607.1, etseq. Any warning provided pursuant to this section
shall be affixed to the packaging of, or directly on, the Covered Products, and be prominently
placed with such conspicuousness as compared with other words, statements, designs, or devices
as to render it reasonably likely to be read and understood by an ordinary individual under
customary conditions before purchase or use. The warning must be set off from other
surrounding information and enclosed in a box. Where the packaging of the Covered Products
or a sign referring to the Covered Products includes consumer information as defined by
California Code of Regulations title 27 §25600.1(c) in a language other than English, the warning
must also be provided in that language in addition to English. Should Defendants sell or
distribute any Covered Products through the internet into California where Defendants controls
the product listing, the warning shall be posted in the manner as provided for internet sales in 27
CCR sections 25601 and 25602, as they may be subsequently amended, for sales to consumers
in California. The Parties agree that the following warning language shall constitute compliance
with Proposition 65 with respect to the alleged Cadmium and/or Lead contained in the Covered
Products manufactured by Defendants as applicable after the Effective Date: For Lead
[CALIFORNIA] or [CA] WARNING: Consuming this product can expose
you to chemicals including Lead, which is 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 For Cadmium
[CALIFORNIA] or [CA] WARNING: Consuming this product can expose you
to chemicals including Cadmium, which is known to the State of California to
cause birth defects or other reproductive harm. For more information go to
www.P65Warnings.ca.gov/food
The language [CALIFORNIA] or [CA] is optional. Lead and/or Cadmium shall be specified in
the warning as applicable if the levels of Lead or Cadmium exceed the reformulation levels set
forth in this Consent Judgment.
3.3 The injunctive requirements of Section 3 shall not apply to Covered Products that
are manufactured or are otherwise already in the stream of commerce as of the Effective Date,
which Covered Products are expressly subject to the releases provided in Section 5.
3.4 Compliance with Warning Regulations. The Parties agree that Defendants shall
be deemed to be in compliance with this Consent Judgment by either adhering to § 3 of this
Consent Judgment or by complying with warning regulations adopted by the State of California’s
OEHHA applicable to the Covered Products and the exposure at issue. In the event that OEHHA
promulgates one or more regulations requiring or permitting Proposition 65 warning text and/or
methods of transmission applicable to the Covered Products and the chemical(d) at issue, which
are different than those set forth above, Defendants shall be entitled to use, at its discretion, such
other warning text and/or method of transmission without being deemed in breach of this
Consent Judgment.
3.5 Changes in the law and regulations applicable to Proposition 65, including
changes resulting from federal and/or state court rulings, occurring after this date may be incorporated into the terms of this Consent Judgment, pursuant to the modification provisions
set forth in Section 7.
Payment in Lieu of Penalty:
$ 8,140.00 (Defendants or their agents shall make a separate payment, in the amount of eight thousand one hundred forty dollars ($8,140) as an additional settlement payment to "Consumer Advocacy Group, Inc." pursuant to Health & Safety Code § 25249.7(b) and California Code of Regulations, Title 11 § 3203(d). Defendants or their agents will issue a separate check to CAG for the Additional Settlement Payment. CAG will use this payment as follows, eighty percent (80%) for fees of investigation, purchasing and testing for Proposition 65 listed chemicals in various products, and for expert fees for evaluating exposures through various mediums, including but not limited to consumer product, occupational, and environmental exposures to Proposition 65 listed chemicals, and the cost of hiring, consulting, and retaining experts who assist with the extensive scientific analysis necessary for those files in litigation and to offset the costs of future litigation enforcing Proposition 65 but excluding attorney fees; twenty percent (20%) for administrative costs incurred during investigation and litigation to reduce the public's exposure to Proposition 65 listed chemicals by notifying those persons and/or entities believed to be responsible for such exposures and attempting to persuade those persons and/or entities to reformulate their products or the source of exposure to completely eliminate or lower the level of Proposition 65 listed chemicals including but not limited to costs of documentation and tracking of products investigated, storage of products, website enhancement and maintenance, computer and software maintenance, investigative equipment, CAG's member's time for work done on investigations, office supplies, mailing supplies and postage. Within 30 days of a request from the Attorney General, CAG shall provide to the Attorney General copies of documentation demonstrating how the above funds have been spent. CAG shall be solely responsible for ensuring the proper expenditure of this Additional Settlement Payment.)
