California Court of Appeals, Second District, First Division
PHYSICIANS COMMITTEE FOR RESPONSIBLE MEDICINE, Plaintiff and Appellant,
APPLEBEE'S INTERNATIONAL, INC., et al., Defendants and Respondents.
APPEAL from judgments of the Superior Court of Los Angeles County Nos. BC383722, BC457193, Jane L. Johnson, Judge.
Richards, Watson & Gershon, T. Peter Pierce and Norman A. Dupont for Plaintiff and Appellant.
Arnold & Porter, Trenton H. Norris, Maria Chedid and Sarah Esmaili for Defendants and Respondents Applebee’s International, Inc., McDonald’s Corporation, OSI Restaurant Partners, Inc., and Chick-fil-A, Inc.
Morrison & Foerster, Michele B. Corash and Robin Stafford for Defendants and Respondents KFC Corporation and Yum! Brands, Inc.
Following our decision reversing summary judgment for defendants in Physicians Committee for Responsible Medicine v. McDonald’s Corporation (2010) 187 Cal.App.4th 554 (PCRM I), the trial court sustained demurrers without leave to amend and dismissed second amended complaints alleging that various chain restaurants serving grilled chicken were in violation of Proposition 65. We affirm.
1. The McDonald’s complaint
As we described in PCRM I, in January 2008 appellant Physicians Committee for Responsible Medicine (PCRM), self-described as a nonprofit organization “‘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, seeking injunctive and declaratory relief and civil penalties against seven chain restaurant corporations (the McDonald’s complaint), including respondents Applebee’s International, Inc. (Applebee’s), McDonald’s Corporation (McDonald’s), OSI Restaurant Partners, Inc. (the owner of Outback Steakhouse) (OSI), and Chick-fil-A, Inc. (Chick-fil-A) (collectively, the McDonald’s defendants). (PCRM I, supra, 187 Cal.App.4th at pp. 559–560.)
PCRM alleged that the restaurants sold grilled chicken products to consumers in California and that the grilling process created a chemical called PhIP,  which appeared on California’s list of carcinogenic chemicals and required the restaurants to give a “‘clear and reasonable warning’” to individuals under the California Safe Drinking Water and Toxic Enforcement Act of 1986, Health and Safety Code section 25249 et seq. (Proposition 65). (PCRM I, supra, 187 Cal.App.4th at p. 560.) The complaint alleged: “None of the locations where Defendants grilled chicken products were purchased for purposes of testing had posted clear and reasonable warnings that food sold on the premises contained a chemical known to the State of California to cause cancer.” The complaint also stated that in order to comply with Proposition 65, the restaurants “must conspicuously post specific warnings with respect to the carcinogenic dangers of the grilled chicken they offer for sale, ” and requested a declaratory judgment declaring that any warning not specifically mentioning the carcinogenic effects of grilled chicken is inadequate.
The trial court granted the McDonald’s defendants’ summary judgment motions, concluding that three specific warnings proposed by PCRM were barred by federal conflict preemption. The trial court also concluded that the Proposition 65 “Safe Harbor” warning was presumptively clear and reasonable, and the restaurants could not be required to provide any different warning in a restaurant already providing the Safe Harbor warning. (PCRM I, supra, 187 Cal.App.4that pp. 562–563.) The Safe Harbor Warning states: “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 or served here.” (See Cal. Code Regs., tit. 27, § 25603.3, subd. (a).) Although PCRM also identified the Safe Harbor Warning as a proposed warning, the trial court in PCRM I declined to require the posting of the warning in restaurants that did not already post it, noting that although the Safe Harbor Warning did not say anything about grilled chicken, “‘the context in which a Safe Harbor Warning, or any other warning, would be posted cannot be ignored.’” Any order that the restaurants post the Safe Harbor warning would therefore constitute a finding that grilled chicken contained carcinogens sufficient to require a Proposition 65 warning, a finding the court concluded would conflict with federal law and policy and was therefore preempted. (PCRM I, at pp. 563–564.)
On appeal, we reversed the trial court’s summary judgment orders, concluding that the Safe Harbor Warning was presumptively clear and reasonable and was not preempted. (PCRM I, supra, 187 Cal.App.4that p. 571.) “As the language of the Safe Harbor Warning is presumptively clear and reasonable, the Restaurants already providing the Safe Harbor Warning would not be required to provide the warnings with the more targeted language that PCRM suggests. The ‘“safe harbor”’ warning specified in the regulations is ‘so called because [its] use constitutes compliance with [Proposition 65] without the necessity of a case-by-case factual determination.’ [Citation.] [¶]... [¶] As the clear and reasonable language of the Safe Harbor Warning does not create any conflict with any federal policy regarding the thorough cooking of chicken, the trial court erred in finding that the Safe Harbor Warning was preempted.” (Ibid.) We also specifically declined to address the method by which the restaurants posted the Safe Harbor Warning, as the method was not in issue before the trial court. Only the wording of the warning was in issue, and therefore “[w]hether the Restaurants utilize a method specified in the regulation [Cal. Code Regs., tit. 27, § 25603.1] is not before us on this appeal.” (Ibid.)
2. The KFC complaint
After PCRM I was decided in August 2010, PCRM filed a complaint on March 15, 2011 against KFC Corporation and its parent company, Yum! Brands (the KFC complaint), requesting the same injunctive relief, statutory civil penalties, and declaratory relief as in the McDonald’s complaint, and alleging that KFC posted the Safe Harbor Warning but failed to warn customers about the PhIP in its grilled chicken, and did not properly post the Safe Harbor Warning: “Although Defendant does post the food and beverage notice set out in the Proposition 65 regulations, this warning does not relate to Defendant’s sale of grilled chicken and is not clear and reasonable as required by the statute because a reasonable consumer would not know that Defendant’s grilled chicken products contain a known carcinogen. This warning is also not displayed in a manner calculated to render it as likely to be read and understood by an ordinary individual.” (Italics added.) Like the McDonald’s complaint, the KFC complaint also stated that the restaurants “must conspicuously post specific warnings with respect to the carcinogenic dangers of the grilled chicken they offer for sale, ” and requested a declaratory judgment declaring that any warning not specifically mentioning the carcinogenic effects of grilled chicken is inadequate.
After the McDonald’s and KFC cases were ordered related in August 2011, PCRM filed an unopposed motion to formally consolidate the cases, but no formal consolidation order ever issued, ...