Filed 5/9/18 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

DORIS CHARLES et al.,

Plaintiffs and Appellants,

v.

SUTTER HOME WINERY , INC., et al.,

Defendants and Respond ents. B275295

(Los Angeles County Super. Ct. No. BC576061)

APPEAL from a judgment of the Superior Court of Los Angeles County, John Shepard Wiley, Jr., Judge. Affirmed

. Kabateck Brown Kellner, Brian S. Kabateck and Drew R.
Fer randini; Esner, Chang & Boyer and Stuart B. Esner for Plaintiffs and Appellants. Jones Day, Frederick McKnight, Charles H. Moellenberg, Jr., and Kerry C. Fowler for Defendants and Respondents Sutter Home Winery, Inc.; Rebel Wine Co., LLC; Don Sebastiani & Sons International Wine Negociants, Corp.; Jean

- Claude Boisset Wines, USA, Inc. ; and Raymond Vineyard and Cellar, Inc.
Farella Braun + Martel

, R. Christopher Locke and C.
Brandon Wisoff for Defendants and Respondents Treasury Wine2

Estates Americas Company; Treasury Wine Estates Holding, Inc.; Beringer Vineyards; The Wine Group, Inc.; The Wine Group, LLC; Golden State Vintners; Varni Brothers Corporation; Fetzer Vineyards; and Bronco Wine Company. O’Melveny & Myers, Dawn Sestito and Guianna Henriquez
for Def endant and Respondent Trader Joe’s Company. Nixon Peabody and Bruce E. Copeland for Defendant and Respondent Constellation Brands U.S. Operations, Inc.
Morrison & Foerster LLP and James M. Schurz for Defendant and Respondent California Natural Products.
La rson O’Brien, Robert C. O’Brien, Steven E. Bledsoe and Steven A. Haskins for Defendant and Respondent F. Korbel &
Bros. Maranga Morgenstern, Ninos Saroukhanioff and Robert A. Morgenstern for Defendants and Respondents Megan Mason, Randy Mason and Oakville Winery Management Corp. Winston & Strawn, Erin R. Ranahan and Drew A. Robertson for Defendants and Respondents Sonoma Wine Co., LLC; and Winery Exchange, Inc.

_____________________

Plaintiffs appeal from the judgment of dismissal based on
the sustainin g of a demurrer to their putative class action complaint under the California Safe Drinking Water and Toxic
Enforcement Act of 1986 . (Health & Saf. Code, § 25249.5 et seq. (Proposition 65 or the Act ).) This appeal challenges the Proposition 65 warning pr ovided by defendants for wines that
contain purportedly unsafe levels of inorganic arsenic, a chemical3

identified by the State of California as a carcinogen and reproductive toxicant (listed chemical)

. It is undisputed that d efendants provided the so

- cal led

“ safe harbor ” warning for alcoholic beverages: “WARNING:
D rinking Distilled Spirits, Beer, Coolers, Wine and Other Alcoholic Beverages May Increase Cancer Risk, and, During Pregnancy, Can Cause Birth Defects.” (Cal. Code Regs., tit. 27, § 25 6 03.3, s ubd. (e)(1) ; 1 see Ingredient Communication Council

, Inc. v. Lungren (1992) 2 Cal.App.4th 1480, 1485 [ describing “safe harbor” warnings].) Plaintiffs do not take issue with t h e adequacy of the safe harbor warning for alcoholic beverages as applied to the h ealth risks posed by alcohol

. Instead, their
concern is with the lack of reference in that warning to inorganic
arsenic

, a listed chemical, and the increased health risks
associated with that toxic substance . Plaintiffs contend
defendants were required t o provide an additional warning for inorganic arsenic, patterned after section 25603.2 , which they claim is stronger than the alcoholic beverage warning . As pertinent, it reads : “WARNING: This product contains

. . . chemical [ s ] known to the State of Cal ifornia to cause cancer [and birth defects, or other reproductive harm ] .” In sustaining the demurrer, t he trial court reasoned th at disclos ure of chemical ingredients in alcoholic beverage s is not a requirement of the Act, and compliance with Proposition 65 is established as a matter of law where, as here, it is undisputed
that th e safe harbor warning for alcoholic beverages was provided to consumers of defendants’ wines . ( § 25603.3, subd. (e)(1).) We conclude the demurrer was properly sustained on this and other

1 All further undesignated regulation section references are
to Title 27 of the California Code of Regulations.4

grounds, including res judicata . The d rafting of safe harbor warnings is a regulatory function assigned to the lead agency, the Office of Environmental Health Hazard Assessment (OEHHA)

, and “[a]ny dissatisfaction with the adequacy of such a war ning is a matter for consideration by OEHHA and the Legislature,
rather than the court.” ( Environmental Law Foundation v. Wykle
Research

, Inc. (2005) 134 Cal.App.4th 60, 68 , fn. 8 ( Environmental Law Foundation ) .)

FACTUAL AND PROCEDURAL BACKGROUND
Actin g in their personal and representative capacities,

p laintiffs Doris Charles, Alvin Jones, Jason Peltier, and Jennifer
Peltier sued the defendant manufacturers, distributors, and
retailers of “arsenic

- contaminated wines

. ” The defendant s are : Sutter Home W inery, Inc. ; Rebel Wine Co., LLC ; Don Sebastiani & Sons International Wine Negociants, Corp. ; Jean

- Claude Boisset Wines, USA, Inc. ; Raymond Vineyard and Cellar, Inc. ; Treasury Wine Estates Americas Company; Treasury Wine Estates Holding, Inc.; Beringer Vin eyards; The Wine Group, Inc.; The Wine Group, LLC; Golden State Vintners; Varni Brothers Corporation; Fetzer Vineyards; Bronco Wine Company; Trader Joe’s Company; Constellation Brands U.S. Operations, Inc.; California Natural Products (named as Constellati on Wines, US and Simply Naked Winery); F. Korbel & Bros.; Megan Mason and Randy Mason; Oakville Winery Management Co rp.; Sonoma Wine Co., LLC; and Winery Exchange, Inc. Many of the defendants were parties to the consent judgment in a previous Proposition 65 class action lawsuit,
Bonilla v. Anheuser

- Busch (Super. Ct. L.A. County, 2014, No.5

BC537188) ( Bonilla )

. 2 Because res judicata is an issue on appeal,
we be g in with discussion of the Bonilla case.

The Bonilla Case
In Bonilla, p laintiffs John Bonilla , Rafael Delgado, Jr., Jesse Garrett, and Rachel Padilla filed a Proposition 65 class
action complaint on behalf of themselves and all similarly situated California consumers of alcoholic beverage products manufactured, distributed, and sold by defendants Anheuser

Busch, LLC, Bacardi U.S

. A

. , Inc., Constellation Brands, Inc.,
D iageo North America, Inc., Hangar 24 Craft Brewery, LLC, Heineken USA Incorporated, and others. The ir complaint alleged
the defendants failed to warn consumers that the ir alcoholic
be verage products contained “ chemicals ” known to the state to cause cancer and reproductive harm

. OEHHA provides a safe harbor warning that the alcoholic beverage industry may provide in order to comply with the Act: “WARNING: D rinking Distilled Spirits, Beer, Coolers, Wine and Other Alcoholic Beverages May Increase Cancer Risk, and, During Pregnancy, Can Cause Birth Defects.” ( § 25603.3, subd. (e)(1).) This warning is central to the 2014 consent judgment in

2 D e fendants requested that judicial notice be taken of relevant court documents from the Bonilla case . The request is granted

. (Evid. Code, § 452, subd. ( d).) All defendants in this case except the following are signatories to the Bonilla consent judgment: M egan Mason, Randy Mason, Oakville Winery Management Corporation, Winery Exchange, Inc., Sonoma Wine Company, LLC, and Golden State Vintners. Although not a signatory, Trader Joe’s is covered by the Bonilla consent judgment as a distributor and retailer of wines produced by Bronco Wine Company.6

the Bonilla case that was signed by many defe ndants in this case as “opt in defendants.” The Bonilla defendants and opt

- in defendants (jointly, the Releasees) stipulated to the following

terms:

• The Releasees agreed to provide t he safe harbor

warning for alcoholic beverages

. (§ 25603.3, sub. (e)( 1).)

• Acting in the public interest, the Bonilla plaintiffs agreed that the consent judgment would constitute a full, final, and binding resolution “of any violation of Proposition 65 that has been or could have been asserted in the public interest agains t the Releasees arising out of exposure to the Covered Products.”

• The Bonilla consent judgment defined “Covered Products” to mean “alcohol beverage products that expose consumers in the State of California to chemicals listed by the State of California p ursuant to California Health & Safety Code [section] 25249.8, including ‘alcoholic beverages, when associated with alcohol abuse[,]’ ‘ethyl alcohol in alcoholic beverages,’ and ‘ethanol in alcoholic beverages.

. . . ’”

This Action
Plaintiffs initiated thi s action in March 2015, several
months after the Bonilla consent judgment was entered. T he parties do not dispute that Proposition 65 applies to the wines at issue in this case, and d efendants do not seek an exemption from the warning requirement.
T he Original Complaint

. The original complaint allege s that by failing to warn consumers of excessive levels of inorganic7

arsenic in the ir wines , defendants are “poisoning wine consumers
in direct violation of California law.” However, there i s no allegat ion of personal injury or physical harm result ing from the consumption of inorganic arsenic in the subject wines. Proposition 65 i s mentioned only once in the original complaint, as the basis of the Unfair Competition Law claim

. (Bus. & Prof. Code, § 17 200 et seq. (UCL)

. ) Th at claim alleges
the failure to provide a Proposition 65 warning for exposure to inorganic arsenic constitutes misleading and deceptive advertising

. This theory i s the basis of the statutory claims for
violation of the Consumer Lega l Remedies Act (Civ. Code, § 1750 et seq. (CLRA

)) and False Advertising Law (Bus. & Prof. Code, § 17500 (FAL))

, as well as claims for unjust enrichment, breach of the implied warranty of merchantability, and negligent misrepresentation. The complaint se eks injunctive relief and restitution of the purchase price paid for the arsenic

- tainted wines from January 1, 2011 to the present

. It reserve s the right to amend the CLRA claim to seek monetary damages after notice is provided under
Civil Code section 17 82. Operative First Amended Complaint

. On the same date the original complaint was filed, plaintiffs mailed a 60

- day Notice of Violation of Proposition 65 to defendants and the requisite government agencies. (See Health & Saf. Code, § 25249.7, subd. (d )(1)

. ) This notice was based on defendants’ alleged failure to warn consumers of exposure to excessive levels of inorganic arsenic in the subject wines. Inorganic arsenic compounds is listed as a carcinogen

, and arsenic (inorganic oxides) is listed as a reproductive toxicant on the State Internet site for Proposition 65

.8

( < https://www.p65warnings.ca.gov/ fact

- sheets/arsenic

inorganic > [as of May 2, 2018 ] .) Following expiration of the 60

- day notice period, plaintiffs filed the first amended complaint, the operative pleading, which allege s a new claim for violation of Proposition 65. T he remaining causes of action in the amended complaint are similar
to those of the original complaint.
The amended complaint refers to the “no significant risk level” for expo sure to inorganic arsenic. This is the level of exposure that OEHHA has de termined will pose no significant
risk of cancer , and for inorganic arsenic (except through inhalation) it is 10 micrograms per day. ( C iting § 25709, sub d

. (b) .) In anticipation o f a defense to the warning requirement
based on the “no significant risk” level, plaintiffs allege that a Proposition 65 warning must be given whenever the toxic
chemical is “added” to a food or beverage

. B ased on information and belief, plaintiffs allege that because inorganic arsenic is
added to the wines i n order “to filter, clarify, fine, sweeten, color, stabilize or otherwise manipulate the wine product before sale

, ” there is no exception to the warning requirement.

Demurrer to First Amended Compla int
In their demurrer t o the amended complaint , defendants argue that arsenic is ubiquitous in air, soil, and water, and

appears in trace amounts in wine, beer, tea, fruits, rice, vegetables, and grains. They contend th ere is no federal or state
maximum a cceptable daily exposure level for inorganic arsenic in
wine , and that by providing the safe harbor warning for alcoholic beverages, they are in full compliance with Proposition 65.9 In addition to the Bonilla court documents, defendants seek judicial noti ce of various OEHHA regulations and Statement s of
Reasons p ertaining to Proposition 65 and safe harbor warnings

. Defendants also seek judicial notice of the maximum acceptable daily exposure levels for arsenic in wine that have been established by Canada ( 100 ppb [ 100 micrograms (μg) of arsenic per liter of wine ]), and 46 foreign countries that are members of the International Organization of Vine and Wine (OIV) ( 200 p pb [ 200 μ g of arsenic per liter of wine ] )

. These requests , which are not opposed, are gr anted.
Defendants assert the “no significant risk level” of exposure
claim is irrelevant to this case because t hey concede the wines are subject to the Proposition 65 warning requirement, and do
not claim an ex ception to the warning requirement for ch emicals that are naturally occurring in food ( § 25501, subd. (a)) or introduced through human activity ( § 25501, subd. (a)(3)). (S ee Health & Saf. Code, § 109935 [“food” include s “beverages”]; see also People ex re l. Brown v. Tri

- Union Seafoods

, LLC (2009 ) 171 Cal.App.4th 1549, 1554 [ ex ception for m ethylmercury that is naturally occurring in tuna]

. )
D efendants take issue with the allegation that a separate arsenic warning must be given for wines that contain more than 10 micrograms of inorganic arsenic pe r liter. T hey contend th e complaint conflates the “no significant risk level ” of 10 micrograms per day with a maximum daily exposure level for inorganic arsenic in wine , and that 10 micrograms per liter is the maximum acceptable daily limit for exposure t o inorganic arsenic in drinking water, not wine. The parties have cited n o federal or state regulation that established a maximum daily exposure level10

for inorganic arsenic in wine. Nor have we found any such
decision. Applying the drinking water standar d to wine would be inappropriate, defendants contend, because it “is based upon a person drinking two liters of water a day every day for a lifetime” (citing 66 C. F .R. § 7006 (2001 ) )

. “For the drinking water standard to be comparable to wine, a person wou ld first need to drink 13.5 glasses of wine

— nearly three bottles

— every day since birth,” and

, they claim

, it would be wrong to apply the same level of consumption to alcoholic beverages. They argue it is neither typical nor reasonable to consume 13.5 glas ses of wine each day
for a lifetime.
D efendants also contend the drinking water standard of 10 micrograms of arsenic per liter of water is stricter than any
known standard for inorganic arsenic in wine , which i n Canada i s 100 micrograms of arsenic per li ter of wine, and in 46 other
countries is 200 micrograms of arsenic per liter of wine

. E ven applying the drinking water standard to wine, the allegation that
wines contain inorganic arsenic at levels that are 500 percent or

more than the drinking water st andard means that the
concentration of inorganic arsenic in wine is 50 micrograms of arsenic per liter of wine (500 % of 10 μ g per liter = 50 μ g per liter ).
Because the alleged arsenic level is below even the strictest
standard for inorganic arsenic in win e, none of the wines at issue
in th is case would exceed the permissible limit for inorganic arsenic in wine in the 47 countries that have adopted such
standard

. Defendants argue that setting a state maximum acceptable daily exposure limit for inorganic ar senic in wine is a regulatory function that requires a balancing of complex policy issues that only the Legislature or OEHHA is qualified to11

perform. (See, e.g., §§ 25721 [calculating level exposure to chemicals causing cancer], 25821 [calculating level o f exposure to chemicals causing reproductive toxicity].)
Defendants also argue that the omission of chemical references does not render a Proposition 65 warning deficient. (Citing Environmental Law Foundation

, supra , 134 Cal.App.4th

at p. 69 , fn. 10 [ “fa ct that the warning language does not specifically indicate that it is referring to a risk created by

. . . mercury, however, is not in itself a deficiency under the regulations to Proposition 65”] .) In drafting the safe harbor warnings, OEHHA considered and rejected a recommendation that the warning provide the names of specific chemicals contained in the product . Defendants quote from OEHHA’s
Revised Statement of Final Reasons : “ One commentator recommended that the warning specify the chemicals involv ed by

name. . . . The Agency believes that this would provide little benefit to consumers and might greatly complicate the warning process. Chemical names would probably hold little meaning for the ordinary individual. Placing the names in the warning w ould mean that separate warning placards might need to be obtained for each product. The goal of the prescribed warnings is to effectively place persons on notice that a risk of cancer or reproductive toxicity is associated with the use of the product

. O nce on notice, if the person desires additional information, he or she can direct further inquiries to the party giving the warning.”
Defendants assert that the ir compli ance with all federal
and state labeling and warning regulations for alcohol is
undis puted in the complaint

. They contend th eir compliance with these regulations foreclose s plaintiffs’ claims for additional
disclosures.12 They also a rgue the Bonilla consent judgment bar s this subsequent action against the Releasees for “any violation of
P roposition 65 that

. . . could have been asserted in the public interest against the Releasees arising out of exposure to the Covered Products.” They also contend th e term “Covered
Products” a s defined in the consent judgment include s alcoholic beverage p roducts that expose consumers to listed “chemicals

, ”
that inorganic arsenic is listed by the state as both a carcinogen and reproductive toxicant

, and because the claims in this case arise from alleged exposure to inorganic arsenic in wine, the y are barred under the doctrine of res judicata. Defendants argue the remaining causes of action are derivative of the Proposition 65 claim and must be dismissed.
Defendants also contend that t he remaining claims are based on a theory of mis representation by omissi on

— that by not listing inorganic arsenic in the safe harbor warning, defendants misled

consumers in to believ ing the ir only chemical exposure was to
alcohol

, and tha t because there is no duty or obligation to disclose the “trace arsenic content of their win es,” the complaint fail s to state a viable theory of misrepresentation by omission or
concealment. In opposition to the demurrer , p laintiffs argue the s afe harbor warning for alcoholic beverage s fails to provide a defense to the complaint because t he war ning refers only to alcohol and is
silent about t he presence of inorganic arsenic , which is uns afe in any amount

. Consumers are aware that wine contains alcohol

, but the same is not true of inorganic arsenic. Accordingly, they

argue that a separate Propo sition 65 warning for inorganic
arsenic is necessary to allow consumers to make an “informed13

decision about whether or not to be exposed to inorganic arsenic (e.g., whether they want to be poisoned).”
The trial court sustained the demurrer. Reasoning t hat the safe harbor warning for alcoholic beverages is deemed clear and reasonable by the O E HHA

, the trial court concluded no additional warning i s required

. At the demurrer hearing, the trial court assumed, as do we,
that the subject wines contain alcoh ol, which is listed by the state

as a chemical known to cause cancer and reproductive harm, plus

a second chemical, inorganic arsenic, which also is listed by the state as a carcinogen and reproductive toxicant. The court rejected the allegation that a ge neral warning for listed chemicals other than alcohol is required where the wines contain a second chemical, inorganic arsenic, that is not mentioned in the safe harbor warning for alcoholic beverages. The type of general warning sought by plaintiffs , pat terned after the present version
of section 25603.2 (operative until Aug. 30, 2018) , would read: “WARNING: This product contains

. . . chemical [ s ] known to the
State of California to cause cancer [and birth defects, or other reproductive harm ] .” T he tri al court determined that Proposition 65 does not require both a general warning and a specific warning for an alcoholic beverage product, and whatever shortcomings exist in the alcoholic beverage warning are for the OEHHA or the Legislature to address. (C iting Environmental
Law Foundation

, supra , 134 Cal.App.4th at p. 69, fn. 8.) Finding the remaining claims to be derivative of the Proposition 65 claim, the court sustained the demurrer to the entire complaint without leave to amend

. The court entered a final order (

judgment ) of dismissal. This timely appeal followed.14 DISCUSSION “‘In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long

- settled rules. “We treat the demurrer as admitting all material facts proper ly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.” [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its part s in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonab le possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.’ [Citation.] ” ( Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 999.)
I On November 4, 1986, the California electorate approved Proposition 65. The Act “prohibits any person, in the course of doing business, from knowingly and intentionally exposing any
individual to a chemical known to the state to cause cancer or reproductive toxicity without giving a specified warning

. . . . ( [Health & Saf. Code,] § 25249.5 et seq.)” ( DiPirro v. American
Isuzu Motors

, Inc. (2004) 119 Cal.App.4 th 966 , 969

– 970 .)
A. The Proposition 65 Warning Requirement The Act requires each person who, in the course of doing business, knowingly and intentionally exposes another person to a listed chemical, to provide a clear and reasonable warning prior15

to the exposure. ( Health & Saf. Code, § 25249.6.) In the context of consumer products, the Act requires that the warning “clearly communicate that the chemical in question is known to the state to cause cancer, or birth defe cts or other reproductive harm.” ( § 25601 .)
T he w arning may be provided through various methods

. ( Health & Saf. Code, § 25249.11, subd. (f).) These includ e labels, postings of notices, and public announcements, “ “‘ provided that the warning accomplished is clear and reasonable. ” [ Citation .] ’ [Citation.]” ( Environmental Law Foundation

, supra , 134 Cal.App.4th at p

. 64.)
B. Safe Harbor Warnings OEHHA, the lead agency designated to implement the Act,
ha s adopted regulations and safe harbor warnings for the businesses that must comply with Proposition 65 . ( Health & Saf. Code, § 25249.12; Environmental Law Foundation

, supra , 134 Cal.App.4th at p. 64.) F or consumer products that contain one or
more of the listed chemicals

— in this case, we assume at least two listed chemicals, alcohol and inorganic arsenic, were present in
the wines

— OEHHA has deemed warnings given in accordance with the safe harbor provisions “to be clear and reasonable.” ( § 12601, subd. (b); Environmental Law Foundation

, supra , 134 Cal.App.4t h at p. 65.) T he purpose of the safe harbor warnings is “‘to provide the businesses choosing to use them reasonable certainty that they will not be subjected to an enforcement action over the warning they provide.’ (OEHHA, Rev. Final Statement
of Reasons (Oct. 6, 1988) pp. 7

– 8; 22 Cal. Code Regs., Div. 2, § 12601, Clear and Reasonable Warnings.)” ( Environmental Law
Foundation , at p. 67 .) When a safe harbor warning is given in compliance with the requirements of the Act, OEHHA has16

concluded that the warn ing eliminate s the need for a “‘case

- by

case factual determination’” of the sufficiency of the warning . ( Id. at p. 66.) Alcoholic Beverage Warning

. For alcoholic beverages, the

state has identified three Proposition 65 chemicals , which are commonly ref

erred to as “alcohol” : (1) “ethyl alcohol in alcoholic beverages” was listed as a reproductive toxicant in 1987; (2) “alcoholic beverages

, when associated with alcohol abuse” was listed as a carcinogen in 1988; and (3) “ ethanol in alcoholic beverages ” was listed as a carcinogen in 2011

. (See § 27001
, subd. (b) ; Dec

. 29, 2017 Proposition 65 List at

< https://oehha.ca.gov/proposition

- 65/proposition

- 65

- list > [ as of May 2, 2018 ]

. ) Following the listing of ethyl alcohol in alcoholic beverages as a reproductive toxicant, OEHHA provided t he original safe harbor warning for alcoholic beverages , which read : “WARNING: Drinking Distilled Spirits, Beer, Coolers, Wine and Other Alcoholic Beverages During Pregnancy Can Cause Birth Defects.” Subsequently, after “alcoh olic beverages

, when associated with alcohol abuse” was identified as a carcinogen, OEHHA amended the safe harbor warning to read : “WARNING: Drinking Distilled Spirits, Beer, Coolers, Wine and Other Alcoholic Beverages May Increase Cancer Risk, and, Durin g Pregnancy, Can Cause Birth Defects.” ( § 25603.3 , subd. (e)(1) .)
General Consumer Product s Warning

. In addition to specialized safe harbor warnings

, OEHHA provides safe harbor warning s for exposure to listed chemicals found in general consumer product s . This is the additional warning plaintiffs contend is required for w ines that contain inorganic arsenic, which is both a carcinogen and a reproductive toxicant

.17

( § 25603.2.) OEHHA has determined that f or general consumer product s : (a) The warning mes sage must include the following language:
1. For consumer products that contain a chemical known
to the state to cause cancer: “WARNING: This product contains a chemical known
to the State of California to cause cancer.”
2. For consumer products that contain a chemical known to the state to cause reproductive toxicity: “WARNING: This product contains a chemical known
to the State of California to cause birth defects or other reproductive harm.” ( § 25603.2.) New Warning for Alcoholic Beverages

. T he most rec ent amendments to OEHHA’s safe harbor warning s will take effect in August 2018

. For consumer products manufactured prior to August 31, 2018, which includes the wines at issue in this case, the OEHHA has determined that a warning “is deemed to be
clear and reasonable if it complies with the September 2008 revision of this article” (referring to art. 6 of tit. 27 of the Cal. Code of Regs.). ( § 25600, subd. (a), operative Aug. 30, 2018.) For alcoholic beverages, the new safe harbor warning
remains largely unchanged : “ ‘ WARNING: Drinking distilled spirits, beer, coolers, wine and other alcoholic beverages may increase cancer risk, and during pregnancy, can cause birth
defects. For more information go to www.P65Warnings.ca.gov/alcohol

. ’ ” ( § 25607.4, subd. ( a), operative Aug. 30, 2018, i talics added.)18 In its Final Statement of Reasons (Sept. 2, 2016 )

, 3 OEHHA
discussed the effect the new alcoholic beverage safe harbor warning will have on the parties to the Bonilla consent judgment.
It stated that “appropr iately 90 percent of all alcoholic beverage products in California” are produced by the Releasees in Bonilla

. Citing section 25600 , subdivision (e) (“A person that is a party to

a court

- ordered settlement or final judgment establishing a warning method or content is deemed to be providing a ‘ clear and
reasonable ’ warning for that exposure for purposes of this article, if the warning complies with the order or judgment ”), OEHHA approved the continued use of “ the warnings described in the Consent Judgment.”
As to th os e who did not participate in the Bonilla consent judgment, OEHHA stated they may u se the “methods and
content in Section 25607.2 [ content for new food exposure warning operative Aug. 30, 2018 ] and 25607.3 [ methods of
transmission for new alcoho lic beverage exposure warning operative Aug. 30, 2018 ] , respectively, if they wish to take advantage of the ‘safe harbor’ under Article 6,” or “post any warning that is clear and reasonable, including the one adopted in the [ Bonilla ] court settlement.” (O EHHA Final Statement of
Reasons (Sept. 2, 2016) .)
Under both the current and amended version s , the safe harbor warnings do not require that chemical ingredients be named on or adjacent to the alcoholic beverage product. Presumably OEHHA did not believe it necessary to identify

3 This document can be found online at https://oehha.ca.gov/media/downloads/crnr/art6fsor090116.pdf ( as of May 2, 2018 ).19

alcohol in the new sa fe harbor warning for alcoholic beverages because the presence of alcohol is obvious to consumers.
New Food and Beverage Exposure Warning

. For foods that
contain one or more listed c hemicals , the new safe harbo r warnings will require , f or the first time, the identification of at least one chemical for each applicable health risk

— cancer and reproductive harm. Because “beverages” are “foods” ( § 25600.1, subd. (g), effective Aug. 30, 2018 , citing Health & Saf. Cod e, § 109935, subd. (a)) , this new safe harbor warning also applies to beverages, and, at the election of the entity providing the warning, may be used for alcoholic beverages

. (OEHHA Final
Statement of Reasons

, Sept. 2, 2016 .)
For foods and beverages that expose consumers to both

c arcinogens and reproductive toxicants, the new safe harbor warning provides: “Consuming this product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer and [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov/food .” ( § 25607.2, subd. (a)(4), operative August 30, 2018.)
For foods and beverages that expose consumers to a single chemical that is both a carcinogen and reproductive toxicant, the new safe harbor warning provides: “ For exposure to a chemical that is listed as both a carcinogen and a reproductive toxicant,
the words, ‘ Consuming t his product can expose you to chemicals including [name of one or more chemicals], which is [are] known
to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to20

www.P65Warnings .ca.gov .’” ( § 2560 7.2, subd. (a)(5), operative Aug. 30, 2018.) “Where a warning is being provided for an exposure to a single chemical the words ‘chemicals including’ may be deleted from the warning c ontent set out in subsections (2 ), ( 3 ), and ( 5 ).” ( § 25607.2, subd. (a)(6) .) The new safe harbor warnings for foods and beverages that expose consumers to more than one listed
chemical are d eemed to be “clear and reasonable” provided a t least one of the listed chemical s is disclosed

, regardless of the
numb er contained in the product. (See OEHHA Final Statement
of Reasons

, Sept. 2, 2016.)

II Plaintiffs argue that providing the safe harbor warning for general consumer product s ( § 25603.2) would result in a “stronger” warning than the alcoholic beverage warning ( § 25603.3 ) . Assuming this is true, the different messages provided in the general warning and the alcoholic beverage warning are based on a balancing of risks, a process that OEHHA is best equipped to determine.
Plaintiffs contend the safe harb or warning for alcoholic beverages is incomplete because it does not alert c onsumers to the presence of inorganic arsenic, and by this omission

, the warning misleads consumers into believ ing their exposure is
limited to a single listed chemical, alcohol. But the purpose of Proposition 65 is to warn consumers of the two health risks

— cancer and reproductive harm

— associated with exposure to a listed chemical, and the alcoholic beverage warning complies with the regulations drafted by OEHHA to accomplish that objective.21 P laintiffs contend that providing a separate warning for inorganic arsenic is required unless the level of exposure falls below the “maximum allowable dose level” (MADL) for arsenic in
wine. They assert t hat the party seeking an exemption fro m the warning requirement

— in this case, defendants

— must bear the
burden of proof at trial for establishing the MADL for arsenic in wine, and due to the existence of a triable issue of material fact,
the demurrer is improper

. Th is assertion overlooks the f act that defendants are not seeking an exemption from the warning requirement. I t also ignores the regulatory process that
authorizes the lead agency to determine whether , in addition to the alcoholic beverage warning, a separate warning for inorganic

ars enic is required.
OEHHA does not require defendants to provide two separate warning s for alcoholic beverages that contain an
additional listed chemical. In the new warnings that will take
effect on August 30, 2018 , OEHHA requires the disclosure of only one listed chemical per health risk and allows each business to decide whether to list additional chemicals in the warning they choose to provide . Under the current regulatory scheme, the failure to provide a separate arsenic warning is not a violation of the regulations or the initiative itself. Whether an additional warning should be required for inorganic arsenic in wine is a matter for the Legislature or OEHHA to consider. (See
Environmental Law Foundation

, supra , 134 Cal.App.4th at p. 6 8
, fn. 8 [ade quacy of safe harbor warning for mercury in dental amalgam is matter for OEHHA or Legislature to determine]; see
also Coshow v. City of Escondido (2005) 132 Cal.App.4th 687,
706

– 707 [fluoridation of drinking water is legislative function].)22 II I As to the defendants that participated in the Bonilla consent judgment, the demurrer was properly asserted on the ground of res judicata and is affirmed that basis

. ‘ “Under the doctrine of res judicata, a valid, final judgment on the merits is a bar to a subsequent action by the parties or their privies on the same cause of action.” ’ ( Villacres v. ABM Industries

, Inc. (2010) 189 Cal.App.4th 562, 575

– 576 ( Villacres )

, quoting Amin v.
Khazindar (2003) 112 Cal.App.4th 582, 589

– 590 .)
The second aspect of the res judic ata doctrine is collateral estoppel ( Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1299 ), which precludes litigation of a claim that was related to the subject matter of the first action and could have been raised in that action, even thou gh it was not expressly pleaded. ( Villacres

, supra , 189 Cal.App.4th at p. 576, citing Interinsurance Exchange of the Auto. Club v. Superior Court (1989) 209 Cal.App.3d 177, 181

– 182.) This preclusive effect applies where, as here, the previous action was dismissed with prejudice based on a court

- approved class action settlement agreement. ( Villacres , at p. 577.)
The Bonilla consent judgment constitute s a full, final, and binding resolution “of any violation of Proposition 65 that has
been or could have been asserted in the public interest against the Releasees arising out of exposure to the Covered Products.” “Covered Products” i s defined as alcoholic beverage products that expose consumers to listed chemicals, “ including ‘alcoholic beverages, when asso ciated with alcohol abuse[,]’ ‘ethyl alcohol in alcoholic beverages,’ and ‘ethanol in alcoholic beverages.’”
Plaintiffs contend the word “including” imposes a limitation that
excludes non

- enumerated chemicals such as inorganic arsenic
from the scope of th e consent judgment

. We do not agree. In our23

view, the word “including” does not denote exclusivity. (See Hasson v. Mercy American River Hosp ital (2003) 31 Cal.4th 709, 717 [“the word ‘including’ in a statute is ‘ordinarily a term of enlargement rather t han limitation’”].) As we read the Bonilla consent judgment

, any claims that could have been asserted in
that case are included in the scope of the consent judgment and may not be raised in a subsequent action

. B ecause the present
claim is based on a vio lation of Proposition 65 arising out of exposure to a listed chemical in a Covered Product, it qualifies as
a claim that could have been asserted in Bonilla and therefore is barred by the consent judgment. Plaintiffs argue th at Consumer Advocacy Group, I nc. v. ExxonMobil Corp . (2008) 168 Cal.App.4th 675 ( Consumer Advocacy ) precludes the res judicata defense. We disagree. Consumer Advocacy was preceded by a settlement agreement and stipulated judgment in an other action b etween the same parties (the “ CBE ” action )

. ( Id. at p. 681.) Th at agreement contained a provision that expressly released all claims that could have been raised arising out of any alleged discharge of or exposure to two specific chemicals, benzene and toluene. ( Id. at p. 688.) Lead,
th e chemical at issue in the subsequent Consumer Advocacy action, was not mentioned in the previous settlement agreement, either by name or more generally as a “gasoline constituent.” ( Ibid. ) Accordingly, Consumer Advocacy held that the release in
the CBE a ction did not bar a subsequent action concerning discharge of or exposure to lead. ( Id. at p. 689 [“While ExxonMobil is not entitled to full summary judgment or to summary adjudication that CAG’s entire action is barred by res judicata, this is only beca use the CBE action did not resolve claims relating to lead.”].) Here, the Bonilla consent judgment24

included a release of future claims based on exposure to a listed
chemical in a Covered Product . Because this case falls within the terms of that release, it is barred by the previous consent judgment. In plaintiffs’ view, resolution of this issue on demurrer is improper because extrinsic evidence will be admissible at trial to interpret the consent judgment and settlement agreement in
Bonilla

. But e xtri nsic evidence is not admissible to provide a

“ ‘ m eaning to which [an instrument] is not reasonably susceptible ’ [citations], and it is the instrument itself that must be given
effect. ’ [Citations.]” ( G & W Warren’s, Inc. v. Dabney (2017) 11 Cal.App.5th 56 5, 576 ( G & W ); see Pacific Gas & Elec. Co. v. G.W. Thomas Drayage & Rigging Co . (1968) 69 Cal.2d 33, 37 [ admissibility of extrinsic evidence to explain contract based not
on whether contract language is clear on its face

, but on whether
it “ ‘ is relevant t o prove a meaning to which the language of the instrument is reasonably susceptible ’ ”] .) Evidence of t he undisclosed intent or understanding of the parties is not relevant to contract interpretation where, as here, t he language of the consent judgment and settlement agreement are susceptible to only one reasonable interpretation

. ( G & W

, at pp. 574

– 575 .) Finally, the public policy argument raised by plaintiffs does

not require a different result

. The consent judgment in Bonilla was governed by the 2001 amendments to Proposition 65 that were adopted to address the concern that “allowing a settlement by one private enforcer to preclude claims by a different private enforcer will encourage collusive settlements.” ( Consumer Advocacy

, supra , 168 Cal.App.4th at p. 685.) “ In response to this concern, the Legislature did not strip Proposition 65 settlements of preclusive effect, but instead increased oversight of settlements25

involving private enforcers. The 2001 amendments included the
addition of section 252 49.7, subdivision (f)(4), which mandates court review and factual findings before approval of any settlement in a private enforcement action, and subdivision (f)(5), which requires that these settlements be submitted to the Attorney General, who may then p articipate in the settlement approval process. (Legis. Counsel ’ s Dig., Sen. Bill No. 471 (2001

– 2002 Reg. Sess.) Stats. 2001, ch. 578.) ” ( Id. at p. 685, fn. omitted.) The Bonilla court documents indicate the Attorney General reviewed the settlement agree ment. If the public interest is not sufficiently protected, the Attorney General may appeal from a consent judgment in a Proposition 65 private
enforcement action. ( See Consumer Defense Group v. Rental Housing Industry Members (2006) 137 Cal.App.4th 1185 , 1204

– 1205. ) Richards v. Jefferson County

, Ala. (1996) 517 U.S. 793, cited by plaintiffs, is distinguishable

. Richards involved a class

action complaint filed by Jason Richards and Fannie Hill to
invalidate a county tax that had been upheld in an earli er action

, Bedingfield v. Jefferson County (1988) 527 So.2d 1270

. The previous action was brought by three taxpayers ( Bedingfield plaintiffs ) who did not sue on behalf of a class. ( Richards , at

p. 801.) The judgment the Bedingfield plaintiffs received d id not purport to bind any county taxpayers who were nonparties, such as Richards and Hill. ( Id. at pp. 801

– 802.) In concluding the judgment in Bedingfield was not binding on Richards and Hill, the Supreme Court stated: “[T]here is no reason to suppose that
the Bedingfield court took care to protect the interests of [Richards and Hill] . . . [or] that the individual taxpayers in Bedingfield understood their suit to be on behalf of absent county26

taxpayers . Thus, to contend that the plaintiffs in Bedingfi eld somehow represented [Richards and Hill], let alone represented them in a constitutionally adequate manner, would be ‘to attribute to them a power that it cannot be said that they had assumed to exercise.’ [Citation.]” ( Id

. at p. 802.)

IV Plaintif fs contend th ey are entitled to amend their complaint

. Plaintiffs have not alleged a viable theory for imposition of a duty to provide two warnings, one for inorganic
arsenic and another f

or alcoholic beverages

. The non

- Proposition 65 claims are base d o n a common theory of misrepresentation by omission. The underlying premise
i s that the warning provided by defendants

— the safe harbor warning for alcoholic beverage s

— is de ceptive and misleading to
consumers because it fails to d isclos e the presence of a second listed chemical, inorganic arsenic

, in the subject wine s. But this theory is flawed for the reasons previously discussed

. Where, as here, the UCL claim is based on an invalid Proposition 65 claim, dismissal is proper. ( Cf. In re Vaccine Cases (200 5 ) 134 Cal.App.4th 438, 458

– 459 [plaintiff may not bring UCL claim based on violation of Proposition 65 that is barred for lack of compliance with 60

- day notice requirement] .) The same is true of the CLRA claim, which is indistinguishable from the UCL
claim given the absence of a claim for monetary damages. Although p laintiffs reserve the right to seek monetary damages under the CLRA, they have not provided statutory notice under
Civil Code section 1782 despite the opportunity to do so . (See Morgan v . AT&T Wireless Services

, Inc. (2009) 177 Cal.App.4th 1235, 1259

– 1261 [failure to comply with notice requirement precludes monetary damages under CLRA] ; ) This indicates the27

principal relief sought under the CLRA claim is restitution and injunctive relief, and because such relief is precluded by the failure to allege a viable Proposition 65 claim, dismissal i s proper. (See Melton v. Boustred (2010) 183 Cal.App.4th 521, 543 [nuisance cause of action was merely clone of invalid cause of action for negligence, and thus falls with that cause of action].)
The same is true of the FAL claim and causes of action for unjust enrichment, breach of the implied warranty of merchantability, and negligent misrepresentation. Because they are based on the identical theory

— t hat the safe harbor warning for alcoholic beverages is deceptive and misleading due to the omission of any reference to inorganic arsenic

— leave to amend was properly denied for the reasons already stated

. The final contention

— that plaintiffs have alleged a separate violation of consumer protection laws based on the addition of inorganic arsenic to wine

— does not compel a different
result. Although the complaint mentions arsenic poisoning in a conclusory fashion , t h e primary right alleged in the pleading i s the right of consumers to receive a separate Proposition 65 warning for inorganic arsenic in wine

. There is no allegation of personal injury or death caused by the unknowing consumption of inorganic arsenic in the subject w ine s ( c f. Major v. R.J. Reynol ds Tobacco Co

. (2017) 14 Cal.App. 5 th 1179 [cigarette manufacturer liable in negligence and product liability for smoker’s death from lung cancer]) , or improper manufacture or
sale of adulterat ed wine s ( cf. Health & Saf. Code, § 110445 [ addition of poisonou s or deleterious substance renders food
unsafe unless within regulatory limits ] .) Regardless whether properly pleaded allegations of improper manufacture or sale of28

adulterated wines may be raised in another lawsuit, they are not
before us now.
To summa rize, the implementation of Proposition 65 is assigned to the lead agency, OEHHA

, and it has authority to determine t he content and manner of displaying safe harbor warnings. Because it is undisputed defendants provided the safe harbor warning for alcohol ic beverages, and because OEHHA has deemed this to be a “clear and reasonable” warning, any alleged deficiency in the warning message

— that it does not disclose the presence of inorganic arsenic

— is not a violation of the regulations . Instead, it “is a matt er for consideration by OEHHA and the Legislature, rather than the court.” ( Environmental Law
Foundation

, supra , 134 Cal.App.4th at p. 69, fn. 8 .) Under the
circumstances in this case

, the safe harbor warning for alcoholic beverages provides a complete d efense

. “ [W] here the nature of the plaintiff's claim is clear, and under substantive law no liability exists, a court should deny leave to amend because no amendment could change the result.” ( City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 455, 459

. )29 DISPOSITION The judgment (order of dismissal) is affirmed. Defendants are entitled to their costs on appeal.
CERTIFIED FOR PUBLICATION

EPSTEIN, P. J. We concur:

WILLHITE, J.

MANELLA, J.