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 Respondents.

 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. 

Ferrandini; 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 Wine 
2

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 Defendant 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.

Larson 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 sustaining 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 provided by defendants for wines that 

contain purportedly unsafe levels of inorganic arsenic, a chemical 
3

identified by the State of California as a carcinogen and 

reproductive toxicant (listed chemical). 

It is undisputed that defendants provided the so-called 

“safe harbor” warning for alcoholic beverages: “WARNING: 

Drinking 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, 

§ 25603.3, subd. (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 the 

adequacy of the safe harbor warning for alcoholic beverages as 

applied to the health 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 to 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 California to cause cancer [and 

birth defects, or other reproductive harm].” 

In sustaining the demurrer, the trial court reasoned that 

disclosure of chemical ingredients in alcoholic beverages 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 the 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 drafting 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 warning 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

Acting in their personal and representative capacities, 

plaintiffs Doris Charles, Alvin Jones, Jason Peltier, and Jennifer 

Peltier sued the defendant manufacturers, distributors, and 

retailers of “arsenic-contaminated wines.” The defendants are: 

Sutter Home Winery, 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 Vineyards; 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 Constellation Wines, US 

and Simply Naked Winery); F. Korbel & Bros.; Megan Mason and 

Randy Mason; Oakville Winery Management Corp.; 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 begin with discussion of the Bonilla case. 

The Bonilla Case 

In Bonilla, plaintiffs 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 AnheuserBusch, LLC, Bacardi U.S.A., Inc., Constellation Brands, Inc., 

Diageo North America, Inc., Hangar 24 Craft Brewery, LLC, 

Heineken USA Incorporated, and others. Their complaint alleged 

the defendants failed to warn consumers that their alcoholic 

beverage 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: Drinking 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 Defendants 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: Megan 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 defendants 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 the 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 against 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 pursuant 

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 this action in March 2015, several 

months after the Bonilla consent judgment was entered. The 

parties do not dispute that Proposition 65 applies to the wines at 

issue in this case, and defendants do not seek an exemption from 

the warning requirement. 

The Original Complaint. The original complaint alleges

that by failing to warn consumers of excessive levels of inorganic 
7

arsenic in their wines, defendants are “poisoning wine consumers 

in direct violation of California law.” However, there is no 

allegation of personal injury or physical harm resulting from the 

consumption of inorganic arsenic in the subject wines. 

Proposition 65 is mentioned only once in the original 

complaint, as the basis of the Unfair Competition Law claim. 

(Bus. & Prof. Code, § 17200 et seq. (UCL).) That claim alleges 

the failure to provide a Proposition 65 warning for exposure to 

inorganic arsenic constitutes misleading and deceptive 

advertising. This theory is the basis of the statutory claims for 

violation of the Consumer Legal 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 seeks injunctive relief and restitution of the 

purchase price paid for the arsenic-tainted wines from January 1, 

2011 to the present. It reserves the right to amend the CLRA 

claim to seek monetary damages after notice is provided under 

Civil Code section 1782. 

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/arsenicinorganic>[as of May 2, 2018].) 

Following expiration of the 60-day notice period, plaintiffs 

filed the first amended complaint, the operative pleading, which 

alleges a new claim for violation of Proposition 65. The 

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 exposure to inorganic arsenic. This is the level of 

exposure that OEHHA has determined will pose no significant 

risk of cancer, and for inorganic arsenic (except through 

inhalation) it is 10 micrograms per day. (Citing § 25709, subd. 

(b).) In anticipation of 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. Based on information 

and belief, plaintiffs allege that because inorganic arsenic is 

added to the wines in 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 Complaint

In their demurrer to 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 there is no federal or state 

maximum acceptable 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 notice of various OEHHA regulations and Statements of 

Reasons pertaining 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 ppb

[200 μg of arsenic per liter of wine]). These requests, which are 

not opposed, are granted. 

Defendants assert the “no significant risk level” of exposure

claim is irrelevant to this case because they concede the wines

are subject to the Proposition 65 warning requirement, and do 

not claim an exception to the warning requirement for chemicals 

that are naturally occurring in food (§ 25501, subd. (a)) or 

introduced through human activity (§ 25501, subd. (a)(3)). (See 

Health & Saf. Code, § 109935 [“food” includes “beverages”]; see 

also People ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 

Cal.App.4th 1549, 1554 [exception for methylmercury that is 

naturally occurring in tuna].) 

Defendants take issue with the allegation that a separate

arsenic warning must be given for wines that contain more than 

10 micrograms of inorganic arsenic per liter. They contend the 

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 to inorganic arsenic 

in drinking water, not wine. The parties have cited no federal or 

state regulation that established a maximum daily exposure level 
10

for inorganic arsenic in wine. Nor have we found any such 

decision.

Applying the drinking water standard 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 would 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 glasses of wine each day 

for a lifetime. 

Defendants 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 in Canada is 

100 micrograms of arsenic per liter of wine, and in 46 other 

countries is 200 micrograms of arsenic per liter of wine. Even 

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 standard means that the

concentration of inorganic arsenic in wine is 50 micrograms of 

arsenic per liter of wine (500% of 10 μg per liter = 50 μg per liter). 

Because the alleged arsenic level is below even the strictest 

standard for inorganic arsenic in wine, none of the wines at issue 

in this 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 arsenic in wine is a 

regulatory function that requires a balancing of complex policy 

issues that only the Legislature or OEHHA is qualified to 
11

perform. (See, e.g., §§ 25721 [calculating level exposure to 

chemicals causing cancer], 25821 [calculating level of 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 [“fact 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 involved 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 would 

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. 

Once on notice, if the person desires additional information, he or 

she can direct further inquiries to the party giving the warning.” 

Defendants assert that their compliance with all federal 

and state labeling and warning regulations for alcohol is

undisputed in the complaint. They contend their compliance 

with these regulations forecloses plaintiffs’ claims for additional 

disclosures. 
12

They also argue the Bonilla consent judgment bars this 

subsequent action against the Releasees for “any violation of 

Proposition 65 that . . . could have been asserted in the public 

interest against the Releasees arising out of exposure to the 

Covered Products.” They also contend the term “Covered 

Products” as defined in the consent judgment includes alcoholic 

beverage products 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, they 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 the remaining claims are based on 

a theory of misrepresentation by omission—that by not listing

inorganic arsenic in the safe harbor warning, defendants misled 

consumers into believing their only chemical exposure was to 

alcohol, and that because there is no duty or obligation to disclose 

the “trace arsenic content of their wines,” the complaint fails to 

state a viable theory of misrepresentation by omission or 

concealment. 

In opposition to the demurrer, plaintiffs argue the safe 

harbor warning for alcoholic beverages fails to provide a defense 

to the complaint because the warning refers only to alcohol and is 

silent about the presence of inorganic arsenic, which is unsafe 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 Proposition 65 warning for inorganic 

arsenic is necessary to allow consumers to make an “informed 
13

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 that the 

safe harbor warning for alcoholic beverages is deemed clear and 

reasonable by the OEHHA, the trial court concluded no 

additional warning is required. 

At the demurrer hearing, the trial court assumed, as do we, 

that the subject wines contain alcohol, 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 general 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, patterned 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].” The trial 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. (Citing 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 properly 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 parts 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 reasonable 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.4th 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 prior 
15

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 defects or other reproductive harm.” 

(§ 25601.)

The warning may be provided through various methods. 

(Health & Saf. Code, § 25249.11, subd. (f).) These include 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, 

has 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.) For 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.4th at p. 65.) The 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 has 
16

concluded that the warning eliminates the need for a “‘case-bycase 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 referred 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 the 

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 “alcoholic 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, During 

Pregnancy, Can Cause Birth Defects.” (§ 25603.3, subd. (e)(1).) 

General Consumer Products Warning. In addition to 

specialized safe harbor warnings, OEHHA provides safe harbor 

warnings for exposure to listed chemicals found in general 

consumer products. This is the additional warning plaintiffs 

contend is required for wines that contain inorganic arsenic, 

which is both a carcinogen and a reproductive toxicant. 
17

(§ 25603.2.) OEHHA has determined that for general consumer 

products: 

(a) The warning message 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. The most recent 

amendments to OEHHA’s safe harbor warnings 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, italics 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 “appropriately 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 those who did not participate in the Bonilla consent 

judgment, OEHHA stated they may use 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 alcoholic 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.” (OEHHA Final Statement of 

Reasons (Sept. 2, 2016).)

Under both the current and amended versions, 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 safe 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 chemicals, the new safe harbor 

warnings will require, for 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. Code, 

§ 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

carcinogens 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 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 birth defects or 

other reproductive harm. For more information go to 
20

www.P65Warnings.ca.gov.’” (§ 25607.2, 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 content 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 deemed to be “clear and reasonable” provided at

least one of the listed chemicals is disclosed, regardless of the 

number 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 products (§ 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 harbor warning for alcoholic 

beverages is incomplete because it does not alert consumers to

the presence of inorganic arsenic, and by this omission, the 

warning misleads consumers into believing 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

Plaintiffs 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 that the party seeking an exemption from 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. This assertion overlooks the fact that 

defendants are not seeking an exemption from the warning 

requirement. It 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 

arsenic is required. 

OEHHA does not require defendants to provide two

separate warnings 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. 68, 

fn. 8 [adequacy 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

III

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 judicata 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 though 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 constitutes 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” is defined as alcoholic beverage products that 

expose consumers to listed chemicals, “including ‘alcoholic 

beverages, when associated 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 the consent judgment. We do not agree. In our 
23

view, the word “including” does not denote exclusivity. (See 

Hasson v. Mercy American River Hospital (2003) 31 Cal.4th 709, 

717 [“the word ‘including’ in a statute is ‘ordinarily a term of 

enlargement rather than 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. Because the present 

claim is based on a violation 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 that Consumer Advocacy Group, Inc. 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 another action between the same parties 

(the “CBE” action). (Id. at p. 681.) That 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, 

the 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 action 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 because the CBE action did not resolve 

claims relating to lead.”].) Here, the Bonilla consent judgment 
24

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 extrinsic evidence is not admissible to provide a 

“‘meaning 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 565, 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 to prove a meaning to which the language of the 

instrument is reasonably susceptible’”].) Evidence of the 

undisclosed intent or understanding of the parties is not relevant 

to contract interpretation where, as here, the 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 settlements 
25

involving private enforcers. The 2001 amendments included the 

addition of section 25249.7, 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 participate 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 agreement. 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 classaction complaint filed by Jason Richards and Fannie Hill to 

invalidate a county tax that had been upheld in an earlier 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 did 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 county 
26

taxpayers. Thus, to contend that the plaintiffs in Bedingfield 

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

Plaintiffs contend they 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 for alcoholic beverages. 

The non-Proposition 65 claims are based on a common 

theory of misrepresentation by omission. The underlying premise 

is that the warning provided by defendants—the safe harbor 

warning for alcoholic beverages—is deceptive and misleading to 

consumers because it fails to disclose the presence of a second 

listed chemical, inorganic arsenic, in the subject wines. 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

(2005) 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 plaintiffs 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 the 
27

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 is 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—that 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, the primary right alleged in the pleading is 

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 wines (cf. Major v. R.J. 

Reynolds Tobacco Co. (2017) 14 Cal.App.5th 1179 [cigarette 

manufacturer liable in negligence and product liability for 

smoker’s death from lung cancer]), or improper manufacture or 

sale of adulterated wines (cf. Health & Saf. Code, § 110445 

[addition of poisonous or deleterious substance renders food 

unsafe unless within regulatory limits].) Regardless whether

properly pleaded allegations of improper manufacture or sale of 
28

adulterated wines may be raised in another lawsuit, they are not 

before us now. 

To summarize, the implementation of Proposition 65 is

assigned to the lead agency, OEHHA, and it has authority to 

determine the content and manner of displaying safe harbor 

warnings. Because it is undisputed defendants provided the safe 

harbor warning for alcoholic 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 matter 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 defense. “[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.