APPEAL from a judgment of the Superior Court of Los Angeles County, Emilie H. Elias, Judge. Reversed. (Los Angeles County Super. Ct. No. BC383722).
The opinion of the court was delivered by: Johnson, J.
CERTIFIED FOR PUBLICATION
Physicians Committee for Responsible Medicine (PCRM) appeals from the trial court's grant of summary judgment in favor of chain restaurant corporations. The trial court concluded that federal law preempted Proposition 65 warnings that grilled chicken contains a known carcinogen. We reverse.
In January 2008, PCRM, a nonprofit organization self-described as "committed to promoting a safe and healthful diet and to protecting consumers from food and drink that are dangerous or unhealthful", filed a complaint in Los Angeles Superior Court against seven chain restaurant corporations (Restaurants),*fn1 seeking an injunction, civil penalties, and declaratory relief to prevent the Restaurants "from continuing to sell grilled chicken products to consumers without clear and reasonable warnings about the carcinogenic effects of those products." The complaint alleged that McDonald's, TGI Friday's, Applebee's, Chick-Fil-A, Chili's, and Outback Steakhouse each sold grilled chicken products to consumers in California, and that the cooking process used to grill the chicken created a chemical called PhIP.*fn2 The complaint alleged that warnings about the PhIP in grilled chicken were required under the California Safe Drinking Water and Toxic Enforcement Act of 1986, Health and Safety Code*fn3 sections 25249 et seq. (Proposition 65), "under which restaurants and other businesses must provide persons with a 'clear and reasonable warning' before exposing consumers to carcinogenic chemicals in the food that they sell and serve."*fn4 The complaint requested an injunction requiring each of the Restaurants to provide warnings and pay statutory civil penalties of up to $2,500 per violation,*fn5 and a declaratory judgment that each of the Restaurants was in violation of Proposition 65 and was required to disclose that its grilled chicken contained a carcinogen.
PCRM provided responses to interrogatories in which it identified three warnings that "might constitute a 'clear and reasonable warning'" under Proposition 65, variably stating that "well cooked chicken," "thoroughly cooked chicken," or "grilled chicken" contained chemicals known to the State of California to cause cancer:
"WARNING: WELL COOKED CHICKEN, INCLUDING THE CHICKEN SERVED IN THIS RESTAURANT, CONTAINS CHEMICALS KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER.
"WARNING: THOROUGHLY COOKED CHICKEN, INCLUDING THE CHICKEN SERVED IN THIS RESTAURANT, CONTAINS CHEMICALS KNOWN TO THE STATE TO CAUSE CANCER.
"Chemicals known to the State of California to cause cancer, or birth defects or other reproductive harm may be present in foods or beverages sold or served here. [¶] Some foods sold here may contain chemicals formed as a by-product of cooking that are known to the State of California to cause cancer or birth defects or other reproductive harm. These chemicals include Polycyclic Aromatic Hydrocarbons and PhIP (2-Amino-1-methyl-6-phenylimidazol[4,5-b]pyridine (in grilled chicken)."
PCRM conceded that other warnings might satisfy the Proposition 65 requirement that any warning be clear and reasonable.
The Restaurants filed a cross-complaint in October 2008 for a declaration that these potential Proposition 65 warnings were preempted by the federal Poultry Products Inspection Act (21 U.S.C. § 451 et seq.) (PPIA), because they conflicted with federal policies promoting the thorough cooking of chicken to "prevent the spread of foodborne illness." The cross-complaint described the PPIA as enacted to "protect consumers against poultry products that are unwholesome, adulterated or misbranded," and to this end "the PPIA establishes a comprehensive and uniform federal scheme regulating labeling, processing and inspection of poultry in a manner that ensures that all poultry sold to consumers is wholesome, not adulterated, and properly marked." The Restaurants cited sections of the PPIA prohibiting any person from selling "adulterated" or "misbranded" poultry products (21 U.S.C. § 458(a)(2)) and describing "'misbranded'" products as including those with "false or misleading" labeling. (21 U.S.C. § 453(h)(1).)
The Restaurants' cross-complaint alleged that the federal Food Safety and Inspection Service (FSIS), a division of the United States Department of Agriculture (USDA), the agency charged with implementing the PPIA, had "determined that preventing foodborne illness is an important federal policy." USDA had "adopted safe handling instruction regulations," and had created programs to educate the public about "the need to thoroughly cook meat and poultry products to avoid foodborne illness." The cross-complaint cited an October 25, 2006 letter from the USDA to the California Department of Health Services. The USDA letter referenced PCRM's Proposition 65 lawsuit and took the position that Proposition 65 warnings were preempted by federal policies "implemented by FSIS to prevent foodborne illness associated with the consumption of meat and poultry products," and the warnings therefore would "cause poultry products to be misbranded under the PPIA." The USDA letter also stated that "by implying that cooked poultry is somehow unsafe or unwholesome, Proposition 65 warnings provide a disincentive for consumers to thoroughly cook raw poultry products."
The cross-complaint alleged that as a result, the warnings requested by PCRM were "in direct conflict with and are preempted by federal law" because the warnings "would have the effect of frightening consumers from properly cooking chicken, thus frustrating USDA's efforts to ensure that people consume thoroughly cooked chicken," and the warnings "constitute labeling that would render the Grilled Chicken Products misbranded under the PPIA." The only warning not preempted was Proposition 65's "Safe Harbor" warning (the "Safe Harbor Warning"), which was posted in some of the Restaurants during the statute of limitations period,*fn6 and which provides: "WARNING: Chemicals known to the State of California to cause cancer, or birth defects or other reproductive harm may be present in foods or beverages sold here." (See Cal. Code Regs., tit. 27, § 25603.3, subd. (a).) The Restaurants alleged: "An actual controversy has arisen and now exists in that PCRM contends that the Safe Harbor Warning fails to provide 'clear and reasonable' warning of alleged exposures to PhIP in Grilled Chicken Products."
The Restaurants filed a motion for summary judgment or, in the alternative, summary adjudication on the cross-complaint. The trial court heard the motion on November 17, 2008, and after orally granting the motion directed the Restaurants to prepare a proposed order and judgment. The court issued an order on January 9, 2009, granting summary judgment for the Restaurants. The trial court found that the three proposed warnings (mentioning "well cooked," "thoroughly cooked" and "grilled" chicken) proposed by PCRM were barred by federal conflict preemption, because they would frustrate USDA's "longstanding policy of promoting the safe cooking of chicken." The warnings also conflicted with the PPIA's purpose of ensuring that consumers have confidence in the wholesomeness of the chicken they consume, because if the warnings were posted regarding the chicken served in the Restaurants, "consumers may decide that the chicken is not wholesome and will stop eating chicken." "For this reason alone, any Proposition 65 warning that PCRM is seeking would frustrate USDA's longstanding policy of promoting consumer confidence in the wholesomeness of chicken consumed by them."
The summary judgment order also concluded that the PCRM warnings, whether on posted signs or on packaging, would constitute "'labeling'" and would cause the chicken to be "misbranded under the PPIA." Finally, the Safe Harbor Warning was "presumptively 'clear and reasonable,'" and PCRM could not obtain relief to require any different warning in any Restaurant already providing the Safe Harbor Warning.
The day before the filing of the order granting summary judgment, PCRM amended its discovery response to identify two more proposed warnings: one stating that "certain chicken products" contained the carcinogen, and the Proposition 65 "Safe Harbor" warning. In February 2009, the Restaurants filed a second motion for summary judgment, again on the basis that federal law preempted the additional warnings suggested by PCRM.
The trial court granted the second summary judgment motion in an order filed on May 22, 2009, incorporating its January 9, 2009 order in full. The trial court stated that its January 9, 2009 order did not address the two new warnings proposed by PCRM and so did not dispose of all the causes of action in PCRM's complaint. At the hearing on May 5, 2009, "Plaintiff's counsel conceded that the first new warning concerning the presence of PhIP in certain unidentified chicken products is preempted based on the Court's prior summary adjudication rulings relating to the cross-complaint. The Court took the matter under submission with respect to the Safe Harbor Warning." The trial court noted "Some defendants may have posted Safe Harbor Warnings in their restaurants prior to the case being filed or during the course of litigation. Those warnings were not posted 'as a result of relief awarded in this lawsuit' and, therefore, do not send a message about the carcinogenic content, if any, of Defendants' grilled chicken products."
The trial court concluded: "In granting summary adjudication of the cross-complaint, the Court found that the three warnings there, if posted, would conflict directly with the United States Department of Agriculture's 'longstanding polic[ies] of promoting the safe cooking of chicken' and 'consumer confidence in the wholesomeness of chicken consumed by them.' The Court reasoned that the warnings would imply that, contrary to federal law and policy, properly cooked chicken is unsafe and unwholesome."
"The Court also found that the three warnings would render the chicken products misbranded under the Poultry Products Inspection Act ("PPIA"), 21 U.S.C. §§ 451 et seq.
"The situation here is somewhat different since the Safe Harbor Warning says nothing about chicken, let alone grilled chicken, and does not mention PhIP. Nevertheless, the Court agrees with Defendants that this is an inconsequential distinction. While the plain language of the Safe Harbor Warning does not state that grilled chicken is unsafe and unwholesome, the context in which a Safe Harbor Warning, or any other warning, would be posted cannot be ignored. Any order from this Court ordering a warning to be posted would be supported by a finding that Defendants' grilled chicken products contain carcinogens in amounts sufficient to require warnings under Proposition 65. Such a finding would communicate a message that Defendants' grilled chicken products are unsafe and unwholesome even though federal law and policy hold that properly cooked chicken is safe and wholesome. Indeed, an average reasonable customer probably would equate the presence of a carcinogen with unwholesomeness. For this reason, and based on the rationale in the Court's prior order, and based on the arguments made in Defendants' summary judgment papers, the Court finds that the Safe Harbor Warning, and any other ...