Stein v. Black Diamond Supplements CA2/7 ( 2021 )

Filed 4/16/21 Stein v. Black Diamond Supplements CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ZACHARY STEIN, B308482
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STCV21674)
v.
BLACK DIAMOND
SUPPLEMENTS, LLC,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Barbara Scheper, Judge. Reversed.
KCJ Law Group and Kevin J. Cole; Tauler Smith and
Robert Tauler for Plaintiff and Appellant.
Murphy, Campbell, Alliston & Quinn, Mariel Covarrubias,
and Kristen A. Johnson for Defendant and Respondent.
_______________________
INTRODUCTION
Zachary Stein filed an action against Black Diamond
Supplements, LLC, asserting a single cause of action for violation
of the Safe Drinking Water and Toxic Enforcement Act of 1986
(Health & Saf. Code, § 25249.5 et seq., as approved by voters,
Gen. Elec. (Nov. 4, 1986), commonly known as Proposition 65).
Stein alleged Black Diamond sells a muscle building compound
that contains androstenedione, but does not give consumers a
clear and reasonable warning that androstenedione is a chemical
known to cause cancer. The trial court sustained Black
Diamond’s demurrer without leave to amend. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Proposition 65 Requires the Governor To Keep a List
of Cancer-causing Chemicals
Proposition 65 prohibits any person “in the course of doing
business” from “knowingly and intentionally expos[ing] any
individual to a chemical known to the state to cause cancer or
reproductive toxicity without first giving clear and reasonable
warning to such individual . . . .” (Health & Saf. Code,
§ 25249.6.)1 Proposition 65 “requires the Governor to publish ‘a
list of those chemicals known to the state to cause cancer or
reproductive toxicity within the meaning of this chapter,’ and to
have the list revised and republished at least annually.”
(American Chemistry Council v. Office of Environmental Health
Hazard Assessment (2020) 55 Cal.App.5th 1113, 1140; see
1 Undesignated statutory references are to the Health and
Safety Code.
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§ 25249.8.) This list “is commonly referred to as the ‘Proposition
65 list.’” (California Chamber of Commerce v. Brown (2011)
196 Cal.App.4th 233, 238.) The Governor has designated the
California Environmental Protection Agency Office of
Environmental Health Hazard Assessment (OEHHA) as the lead
agency responsible for implementing Proposition 65. (American
Chemistry Council, at p. 1140; see § 25249.12; Cal. Code Regs.,
tit. 27, § 25102, subd. (o).)
B. Androstenedione Is on the List
On May 3, 2011 OEHHA added androstenedione to the list
of chemicals known to the state to cause cancer. (See Cal. Code
Regs., tit. 27, § 27001.) Androstenedione is a “[p]recursor to male
and female sex hormones produced by the human body” and is
used as a “dietary supplement” to enhance performance. (Cal.
Environmental Protection Agency, Office of Environmental
Health Hazard Assessment, Notice of Intent to List:
Androstenedione, Dibromoacetonitrile, Hexachlorobutadiene, and
Malonaldehyde, Sodium Salt (Mar. 4, 2011), p. 1.)
Androstenedione is classified as an “anabolic steroid,” a
Schedule III controlled substance, under the federal Controlled
Substances Act. (21 U.S.C. § 802 (41)(A)(iv); see 21 U.S.C.
§§ 801, 812; 21 C.F.R. § 1308.13(f).) According to OEHHA’s
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official website, androstenedione has the following chemical
structure:
(Office of Environmental Health Hazard Assessment, The
Proposition 65 List, Androstenedione [as of Apr. 14, 2021]
archived at .)
C. Stein Sues Black Diamond Under Proposition 65
Stein filed this action against Black Diamond, alleging
Black Diamond sells “a muscle building compound called
‘Monster Plexx by Innovative Labs,’” which it markets as a
“‘powerful blend of five anabolic compounds’” for “‘massive gains
in size and strength.’” Stein alleged that Monster Plexx “contains
[Black Diamond’s] Androstenedione (4-Androstene-3ß-ol,17-one)”
and that “4-Androstene-3ß-ol,17-one is considered a synonym for
Androstenedione.” He also alleged (perhaps inconsistently) that
“4-Androstene-3ß-ol,17-one . . . converts to Androstenedione when
ingested in the human body.” Stein claimed Black Diamond sold
Monster Plexx without providing a “clear and reasonable
warning” of the health hazards associated with exposure to
androstenedione, in violation of Proposition 65.
Black Diamond demurred to the complaint, arguing that
4-Androstene-3ß-ol,17-one, “the chemical that is actually
contained in” Monster Plexx, “is not Androstenedione,” the
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chemical requiring a warning under Proposition 65. Citing
Consumer Cause, Inc. v. Weider Nutrition Internat. (2001)
92 Cal.App.4th 363 (Consumer Cause), Black Diamond argued a
plaintiff cannot state a cause of action under Proposition 65 by
alleging a chemical that is not on the Proposition 65 list “is
converted by the body into [a] chemical” that is on the
Proposition 65 list. The trial court sustained Black Diamond’s
demurrer without leave to amend and entered a signed order
dismissing the complaint with prejudice. Stein timely appealed.
DISCUSSION
A. Standard of Review
“In reviewing an order sustaining a demurrer, we examine
the operative complaint de novo to determine whether it alleges
facts sufficient to state a cause of action under any legal theory.”
(T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145,
162; accord, Ko v. Maxim Healthcare Services, Inc. (2020)
58 Cal.App.5th 1144, 1149, petn. for review pending, petn. filed
Jan. 29, 2021, S266903.) “In making this determination, we must
accept the facts pleaded as true and give the complaint a
reasonable interpretation.” (Mathews v. Becerra (2019) 8 Cal.5th
756, 762; accord, Ko, at p. 1150.)
B. The Trial Court Erred in Sustaining the Demurrer
As discussed, Proposition 65 prohibits any person in the
course of doing business from knowingly and intentionally
exposing any individual to a chemical known to cause cancer,
such as androstenedione, without first giving a clear and
reasonable warning. (See § 25249.6; Cal. Code Regs., tit. 27,
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§ 27001.) To “expose” an individual to a chemical includes
causing the individual “to ingest . . . or otherwise come into
contact with [the] chemical.” (Cal. Code Regs., tit. 27, § 25102,
subd. (i).) Stein alleged that Monster Plexx contains
androstenedione, that Black Diamond knows Monster Plexx
contains androstenedione, and that Black Diamond sells Monster
Plexx as a muscle building compound, i.e., knows and intends
consumers will ingest Monster Plexx. These allegations state
facts sufficient to constitute a state a cause of action for violating
section 25249.6.
As Black Diamond correctly points out, Stein also alleged
4-Androstene-3ß-ol,17-one, which is contained in Monster Plexx,
“converts” to androstenedione in the body after ingestion. In
Consumer Cause, supra, 92 Cal.App.4th 363 a consumer group
brought an action against the manufacturers of products that
contained two chemicals that were not on the Proposition 65 list
but that, when ingested, increased the levels in the body of
testosterone, a chemical that was, and still is, on the
Proposition 65 list. (Consumer Cause, at pp. 365, 368; see
Cal. Code Regs., tit. 27, § 27001.) The court in Consumer Cause
held that “exposure” for purposes of section 25249.6 occurs “‘at
the first point at which the body connects with a chemical from
outside the body,’” but “‘does not include what happens inside the
body to transform the chemical into something else.’” (Consumer
Cause, at p. 369.) Therefore, the court concluded that the product
did not expose individuals to a chemical known to cause cancer.
(Id. at p. 371.)
To the extent Stein’s theory of liability is that Monster
Plexx contains a chemical different from androstenedione that is
not on the Proposition 65 list but that converts into
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androstenedione when ingested, Stein may not have alleged facts
sufficient to constitute a cause of action under Consumer Cause
(an issue we do not reach here). But that was not Stein’s (only)
theory. Stein also alleged multiple times that Monster Plexx
“contains” androstenedione. Stein did allege in one paragraph
that 4-Androstene-3ß-ol,17-one converts into androstenedione
when ingested, but he also alleged in a different paragraph that
4-Androstene-3ß-ol,17-one is simply a synonym for
androstenedione—i.e., that 4-Androstene-3ß-ol,17-one and
androstenedione are the same chemical. Giving Stein’s
allegations a reasonable interpretation, and recognizing that the
complaint does not include a detailed analysis of the chemical
composition and nature of the compounds (an analysis more
appropriate for summary judgment), Stein alleged alternative
theories of relief: first, that 4-Androstene-3ß-ol,17-one is different
from androstenedione but converts into androstenedione when
ingested; second, that 4-Androstene-3ß-ol,17-one is actually the
same chemical as androstenedione. Stein may plead both
theories, even if inconsistent. (See Adams v. Paul (1995)
11 Cal.4th 583, 593 [“a party may plead in the alternative and
may make inconsistent allegations”]; Teva Pharmaceuticals USA,
Inc. v. Superior Court (2013) 217 Cal.App.4th 96, 109 [“California
law permits [a plaintiff] to plead inconsistent facts”]; Mendoza v.
Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402 [“When
a pleader is in doubt about what actually occurred or what can be
established by the evidence, the modern practice allows that
party to plead in the alternative and make inconsistent
allegations.”].) Stein’s allegations stated facts sufficient to
constitute a cause of action under the second theory.
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Black Diamond argues that determining whether
4-Androstene-3ß-ol,17-one is a synonym for androstenedione is a
“purely legal task.” OEHHA’s website identifies certain
synonyms for androstenedione, but does not list 4-Androstene-3ß-
ol,17-one as one of them; therefore, according to Black Diamond,
the court can determine as a matter of law that 4-Androstene-3ß-
ol,17-one is not a synonym for androstenedione. Black Diamond’s
argument misses the mark. Proposition 65 requires businesses to
warn individuals when it exposes them to chemicals known to
cause cancer, not when it uses specific nomenclature in its
product labels or marketing. (§ 25249.6; see American Chemistry
Council v. Office of Environmental Health Hazard Assessment,
supra, 55 Cal.App.5th at p. 1140 [Proposition 65 “‘imposes severe
penalties upon those who contaminate drinking water with
carcinogenic and toxic chemicals and who expose individuals to
such chemicals without warning’”]; Styrene Information &
Research Center v. Office of Environmental Health Hazard
Assessment (2012) 210 Cal.App.4th 1082, 1087 [“Once a chemical
is placed on the list, businesses that manufacture, import or use
such chemicals are subject to various restrictions.”].) Whether
Monster Plexx contains the chemical listed on the Proposition 65
list as androstenedione is a factual question, regardless of
whether Black Diamond refers to the chemical as
“Androstenedione,” “4-Androstene-3ß-ol,17-one,” “5-Androstene-
4𝛾-ol,18-one,” or something else.
Black Diamond also contends that 4-Androstene-3ß-ol,17-
one, “as its name shows,” differs in chemical composition from
androstenedione. It may very well be that 4-Androstene-3ß-ol,17-
one is a different chemical than the chemical listed on the
Proposition 65 list as androstenedione. But with the possible
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exception of “simple and well known binary compounds such as
water (H2O) and carbon dioxide (CO2),” the name of a chemical
does not establish its chemical composition as a matter of law.
(People v. Davis (2013) 57 Cal.4th 353, 361; see ibid. [where a
drug is “not specifically listed in any schedule, evidence of [the
drug’s] chemical name, standing alone, is insufficient to prove
that it contains a controlled substance or meets the definition of
an analog”].) As the Supreme Court stated in Davis, “It may be
widely accepted within the scientific community, and verifiable
by resort to technical reference works, that a chemical name
reflects its component elements. Yet many scientifically accepted
facts remain far beyond the common knowledge of laypersons,”
and “[c]ustomarily, such information is presented to the jury
through qualified witnesses, subject to cross-examination.”
(Ibid.)
Stein alleged in his complaint that 4-Androstene-3ß-ol,17-
one and androstenedione are the same. On demurrer, we must
accept Stein’s allegation as true, even if, as a matter of organic
chemistry, it is unlikely or improbable. (See Hacker v.
Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“In
considering the merits of a demurrer, . . . ‘the facts alleged in the
pleading are deemed to be true, however improbable they may
be.’”]; Nolte v. Cedars-Sinai Medical Center (2015)
236 Cal.App.4th 1401, 1406 [“Because a demurrer tests only the
legal sufficiency of the pleading, we accept as true even the most
improbable alleged facts, and we do not concern ourselves with
the plaintiff’s ability to prove its factual allegations.”].) And
which chemical(s) Monster Plexx actually contain(s) is a factual
question we cannot resolve on demurrer.
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DISPOSITION
The judgment is reversed. Stein is to recover his costs on
appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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