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Popa 14 b Crungl FI LED
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Ge bet COURT
BY
Deputy Clerk
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
CENTER FOR ENVIRONMENTAL HEALTH, Case No. CGC-19-575773
Plaintiff, Rorosnereo
[P. 'ONSENT
v. JUDGMENT AS TO WHOLESOME
SWEETENERS, INC.
WHOLESOME SWEETENERS, INC., et al.,
Defendants.
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CONSENT JUDGMENT ~ WHOLESOME SWEETENERS, INC, — CASE NO. CGC-19-575773oOo ND
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1. INTRODUCTION
1d The Parties to this Proposition 65 consent judgment (“Consent Judgment”) are the
Center For Environmental Health (“CEH”), a California non-profit corporation, and Wholesome
Sweeteners, Inc. (“Settling Defendant”).! CEH and Settling Defendant (the “Parties”) enter into
this Consent Judgment to settle certain claims asserted by CEH against Settling Defendant as set
forth in the operative complaint (“Complaint”) in the above-captioned matter.
1.2 This Consent Judgment covers the lead and acrylamide content of molasses that is
packaged by Settling Defendant for consumer use and then offered for retail sale by Settling
Defendant or any other direct or indirect downstream entity to residents of the State of California,
whether in Settling Defendant’s own brand name or as privately labeled (“Covered Products”).
Covered Products do not include molasses packaged by Settling Defendant for commercial use or
the resulting products that utilize such commercial molasses as an ingredient. A list of all
privately labeled Covered Products that are currently sold by Settling Defendant and covered by
this Consent Judgment is attached hereto as Exhibit A. ten
1.3. On February 8, 2017, CEH provided a 60-day Notice of Violation of Proposition
65 to the California Attorney General, the District Attorneys of every county in California, the
City Attorneys of every California city with a population greater than 750,000 and to Settling
Defendant, alleging that Settling Defendant violated Proposition 65 by exposing persons to
acrylamide contained in Covered Products without first providing a clear and reasonable
Proposition 65 warning.
1.4 On September 7, 2018, CEH provided a 60-day Notice of Violation of Proposition
65 to the California Attorney General, the District Attorneys of every county in California, the
City Attorneys of every California city with a population greater than 750,000 and to Settling
Defendant, alleging that Settling Defendant violated Proposition 65 by exposing persons to lead
and lead compounds (“Lead”) contained in Covered Products without first providing a clear and
reasonable Proposition 65 warning.
' Proposition 65 is codified in California Health & Safety Cgde §§ 25249.5 et seq.
CONSENT JUDGMENT — WHOLESOME SWEETENERS, INC. — CASE NO. CGC-19-57577327
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1.5 Settling Defendant is a corporation or other business entity that manufactures,
distributes, sells or offers for sale Covered Products that are sold in the State of California or has
done so in the past.
1.6 On May 7, 2019, CEH filed the Complaint in the above-captioned matter naming
Settling Defendant as a defendant in the action.
1.7 For purposes of this Consent Judgment only, the Parties stipulate that this Court
has jurisdiction over the allegations of violations contained in the Complaint and personal
jurisdiction over Settling Defendant as to the acts alleged in the Complaint, that venue is proper in
the County of San Francisco and that this Court has jurisdiction to enter and enforce this Consent
Judgment as a full and final resolution of all claims which were or could have been raised in the
Complaint based on the facts alleged therein with respect to Covered Products manufactured,
distributed and/or sold by Settling Defendant.
1.8 Nothing in this Consent Judgment is or shall be construed as an admission by the
Parties of any fact, conclusion of law, issue of law or violation of law, nor shall compliance with
the Consent Judgment constitute or be construed as an admission by the Parties of any fact,
conclusion of law, issue of law or violation of law. Nothing in this Consent Judgment shall
prejudice, waive or impair any right, remedy, argument or defense the Parties may have in any
other pending or future legal proceedings. This Consent Judgment is the product of negotiation
and compromise and is accepted by the Parties solely for purposes of settling, compromising and
resolving issues disputed in this Action.
2. DEFINITIONS
2.1. The “ Effective Date” shall mean the date Notice of Entry of this Consent
Judgment is served.
2.2. The “Acrylamide Level” shall mean a concentration level of no more than 325
parts per billion (“ ppb” ) acrylamide by weight.
2.3. The “Lead Level” shall mean a concentration level of no more than 35 ppb Lead
by weight.
3.
CONSENT JUDGMENT - WHOLESOME SWEETENERS, INC. — CASE NO. CGC-19-57577328
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3. INJUNCTIVE RELIEF
3.1 Clear and Reasonable Warnings for Covered Products. As of the Effective
Date, no Covered Product that:
¢ contains acrylamide in a concentration exceeding the Acrylamide Level; or
¢ contains lead in a concentration exceeding the Lead Level,
shall be sold or offered for sale by Settling Defendant unless Settling Defendant provides a clear
and reasonable warning as further specified in this Section 3.
3.2 Warning Language. The warning required by Section 3.1 for Covered Products
shall state the following:
3.2.1 For Covered Products that contain acrylamide in a concentration
exceeding the Acrylamide Level:
WARNING:
Consuming this product can expose you to chemicals including acrylamide, which is
known-to the State of California to cause cancer. For more information go to
www.P65 Warnings.ca.gov/food.
3.2.2 -For Covered Products that contain Lead in a concentration exceeding the
Lead Level:
WARNING:
Consuming this product can expose you to chemicals including lead, which is known to
the State of California to cause birth defects or other reproductive harm. For more
information go to www.P65 Warnings.ca.gov/food.
3.2.3. For Covered Products that contain both acrylamide in a concentration
exceeding the Acrylamide Level and Lead in a concentration exceeding the Lead Level:
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WARNING:
Consuming this product can expose you to chemicals including lead and acrylamide,
which are known to the State of California to cause cancer and birth defects or other
reproductive harm. For more information go to www.P65 Warnings.ca.gov/food.
The word “WARNING” must be in all capital letters and bold print.
3.3. Placement of Warning Language. The warning language set forth in Section 3.2
must be displayed with such conspicuousness as compared with other words, statements, designs
or devices as to render the warning likely to be read and understood by an ordinary consumer
under customary conditions of purchase and use. The warning language shall appear on the
container’s label, set off from other surrounding information or enclosed in a box. If the
product’s label contains other warnings or nutritional information in a language other than
English, the warning language set forth in Section 3.2 must also be displayed on the label in that
language in addition to English.
3.4 Internet Sales. With respect to internet sales of Covered Products, the warning
language set forth in Section 3.2 must be prominently displayed in such a manner that it is likely
to be read and understood as being applicable to the Covered Product being sold prior to the
authorization of or actual payment by the purchaser. For purposes of this Section 3.4, the
warning language is not prominently displayed if the customer must search for the warning
language in the general content of Settling Defendant’s website or if a reasonable consumer
cannot determine the specific Covered Product to which the warning applies. If the product
display page contains other warnings or nutritional information in a language other than English,
the warning language set forth in Section 3.2 must also be displayed on the label in that language
in addition to English.
3.5 Commercial Products. The requirements set forth in this Section 3 do not apply
to molasses that is packaged by the Settling Defendant in containers of more than one quart which
are intended for commercial use.
5.
CONSENT JUDGMENT — WHOLESOME SWEETENERS, INC. — CASE NO. CGC-19-575773co Oe YN DW BW N
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3.6 Additional Time. Notwithstanding the foregoing, to avoid waste, Settling
Defendant may have until the Effective Date to bottle Covered Product in consumer packaging
that was printed prior to the execution of this Consent Judgment, and until December 31, 2019 to
sell or distribute from its inventory Covered Products bottled in such consumer product
packaging, without the warning required by Sections 3.1 and 3.2.
4. ENFORCEMENT
Al Enforcement Procedures. This Court shall have exclusive jurisdiction over all
matters regarding enforcement of the Consent Judgment. Prior to bringing any motion or order to
show cause to enforce the terms of this Consent Judgment, a Party seeking to enforce shall
provide the violating party thirty (30) days advanced written notice of the alleged violation. The
Parties shall meet and confer during such thirty (30) day period in an effort to try to reach
agreement on an appropriate cure for the alleged violation. After such thirty (30) day period, the
Party seeking to enforce may, by new action, motion or order to show cause before the Superior
Court of San Francisco, seek to enforce Proposition 65 or the terms and conditions contained in
this Consent Judgment.
42 Failure to Comply With Payment Obligations. Notwithstanding the provisions
of the Enforcement of Judgments Law and CCP § 780.160, in the event that Settling Defendant
does not comply fully with its payment obligations under Section 5, in addition to any other
enforcement mechanism available to CEH, CEH may obtain an order requiring Settling
Defendants to submit to a debtors exam. In the event that Settling Defendants fail to submit to
any such debtors exam ordered by the Court, CEH may seek an order holding Settling Defendant
in contempt of court.
5. PAYMENTS
5.1 Payments by Settling Defendant. On or before ten (10) days following the
Effective Date, Settling Defendant shall pay the total sum of $197,500 as a settlement payment as
further set forth in this Section.
5.2 Allocation of Payments. The total settlement amount for Settling Defendant shall
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be paid in five (5) separate checks in the amounts specified below and delivered as set forth
below. Any failure by Settling Defendant to comply with the payment terms herein shall be
subject to a stipulated late fee to be paid by Settling Defendant in the amount of $100 for each
day the full payment is not received after the applicable payment due date set forth in Section 5.1.
The late fees required under this Section shall be recoverable, together with reasonable attorneys’
fees, in an enforcement proceeding brought pursuant to Section 4 of this Consent Judgment. The
funds paid by Settling Defendant shall be allocated as set forth below between the following
categories and made payable as follows:
5.2.1 A civil penalty in the amount of $36,343 pursuant to Health & Safety Code
§ 25249.7(b). The civil penalty payment shall be apportioned in accordance with Health & Safety
Code § 25249.12 (25% to CEH and 75% to the State of California's Office of Environmental
Health Hazard Assessment (“OEHHA”)). Accordingly, the OEHHA portion of the civil penalty
payment for $27,257 shall be made payable to OEHHA and associated with taxpayer
identification number 68-0284486. This payment shall be delivered as follows:
For United States Postal Service Delivery:
Attn: Mike Gyurics
Fiscal Operations Branch Chief
Office of Environmental Health Hazard Assessment
P.O. Box 4010, MS #19B
Sacramento, CA 95812-4010
For Non-United States Postal Service Delivery:
Attn: Mike Gyurics
Fiscal Operations Branch Chief
Office of Environmental Health Hazard Assessment
1001 I Street, MS #19B
Sacramento, CA 95814
The CEH portion of the civil penalty payment for $9,086 shall be made
payable to the Center for Environmental Health and associated with taxpayer identification
number 94-3251981. This payment shall be delivered to Lexington Law Group, 503 Divisadero
Street, San Francisco, CA 94117.
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5.2.2 An Additional Settlement Payment (“ASP”) in the amount of $27,257 to
CEH pursuant to Health & Safety Code § 25249.7(b), and California Code of Regulations, Title
11, § 3204. CEH intends to place these funds in CEH’s Toxics in Food Fund and used to support
CEH programs and activities that seek to educate the public about toxic chemicals in food, to
work with the food industry and agriculture interests to reduce exposure to toxic chemicals in
food and to thereby reduce the public health impacts and risks of exposure to acrylamide, Lead
and other toxic chemicals in food sold in California. CEH shall obtain and maintain adequate
records to document that ASPs are spent on these activities and CEH agrees to provide such
documentation to the Attorney General within thirty days of any request from the Attorney
General. The payment pursuant to this Section shall be made payable to the Center for
Environmental Health and associated with taxpayer identification number 94-3251981. This
payment shall be delivered to Lexington Law Group, 503 Divisadero Street, San Francisco, CA
94117.
5.2.1 Settling Defendant shall pay $133,900 as a reimbursement of a portion of
CEH’s reasonable attorneys’ fees and costs. The attorneys’ fees and cost reimbursement shall be
made in two separate checks as follows: (a) $117,500 payable to the Lexington Law Group and
associated with taxpayer identification number 94-3317175; and (b) $16,400 payable to the
Center For Environmental Health and associated with taxpayer identification number 94-
3251981. Both of these payments shall be delivered to Lexington Law Group, 503 Divisadero
Street, San Francisco, CA 94117.
5.2.2 To summarize, Settling Defendants shall deliver checks made out to the
payees and in the amounts set forth below:
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Payee Type Amount Deliver To
OEHHA per Section
OEHHA Penalty $27,257 5.2.1
Center For Environmental Health _| Penalty $9,086 LLG
Center For Environmental Health | ASP $27,257 LLG
Lexington Law Group Fee and Cost | $117,500 LLG
Center For Environmental Health | Fee and Cost | $16,400 LLG
6. MODIFICATION AND DISPUTE RESOLUTION
6.1 | Modification. This Consent Judgment may be modified from time to time by
express written agreement of the Parties, with the approval of the Court, or by an order of this
Court upon motion and in accordance with law.
6.2 Notice; Meet and Confer. Any party seeking to modify this Consent Judgment
shall attempt in good faith to meet and confer with the other party prior to. filing a motion to
modify the Consent Judgment.
7. CLAIMS COVERED AND RELEASE
71 Provided that Settling Defendant complies in full with its obligations under
Section 5, this Consent Judgment is a full, final and binding resolution between CEH on behalf of
itself and the public interest and Settling Defendant and its parents, subsidiaries, affiliated entities
that are under common ownership, directors, officers, employees, agents, shareholders,
successors, assigns, and attorneys (“Defendant Releasees”), and all entities to which Settling
Defendant distributes or sells Covered Products, such as distributors, wholesalers, customers,
retailers (including, but not limited to Save Mart Supermarkets and Target Corporation),
franchisees, licensors and licensees (“Downstream Defendant Releasees”), of any violation of
Proposition 65 based on failure to warn about alleged exposure to acrylamide or Lead contained
in Covered Products that were sold or distributed by Settling Defendant prior to the Effective
Date.
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7.2 Provided that Settling Defendant complies in full with its obligations under
Section 5, CEH, for itself, its agents, successors and assigns, releases, waives and forever
discharges any and all claims against Settling Defendant, Defendant Releasees and Downstream
Defendant Releasees arising from any violation of Proposition 65 or any other statutory or
common law claims that have been or could have been asserted by CEH individually or in the
public interest regarding the failure to warn about exposure to acrylamide or Lead contained in
Covered Products sold or distributed by Settling Defendant prior to the Effective Date.
7.3 Provided that Settling Defendant complies in full with its obligations under
Section 3 hereof, compliance with the terms of this Consent Judgment by Settling Defendant shall
constitute compliance with Proposition 65 by Settling Defendant, Defendant Releasees and
Downstream Defendant Releasees with respect to any alleged failure to warn about acrylamide or
Lead in Covered Products sold by Settling Defendant after the Effective Date. Notwithstanding
the foregoing, to the extent that a Downstream Defendant Releaseee offers Covered Products for
sale to California consumers via the internet following the Effective Date that have been labeled
with warnings as required under Sections 3.1 and 3.2, such Downstream Defendant Releasee shall
not be deemed in compliance with Proposition 65 under this Section unless it provides internet
warnings for the Covered Products in question in a manner compliant with Section 3.4 hereof.
8. PROVISION OF NOTICE
8.1 When CEH is entitled to receive any notice under this Consent Judgment, the
notice shall be sent by first class and electronic mail to:
Eric S. Somers
Lexington Law Group
503 Divisadero Street
San Francisco, CA 94117
esomers@lexlawgroup.com
8.2 When Settling Defendant is entitled to receive any notice under this Consent
Judgment, the notice shall be sent by first class and electronic mail to:
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CONSENT JUDGMENT ~ WHOLESOME SWEETENERS, INC. — CASE NO. CGC-19-57577327
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Nigel Willerton
Chief Executive Officer
Wholesome Sweeteners, Inc.
1 Sugar Creek Center Blvd. Suite 500
Sugar Land, TX 77478
Nigel@wholesomesweet.com
Robert L. Falk
Morrison & Foerster LLP
425 Market Street, 32" Floor
San Francisco, CA 94105
rfalk@mofo.com
Any Party may modify the person and/or address to whom the notice is to be sent by sending the
other Party notice by first class and electronic mail. ,
9. COURT APPROVAL
9.1 This Consent Judgment shall become effective upon the date signed by CEH and
Settling Defendant, whichever is later, provided however, that CEH shall prepare and file a
Motion for Approval of this Consent Judgment and Settling Defendant shall support approval of
such Motion.
9.2 If this Consent Judgment is not entered by the Court, it shall be of no further force
or effect and shall not be introduced into evidence or otherwise used in any proceeding for any
purpose.
10. GOVERNING LAW AND CONSTRUCTION
10.1 The terms of this Consent Judgment shall be governed by the laws of the State of
California.
11. ATTORNEYS’ FEES
11.1 A Party who unsuccessfully brings or contests an action arising out of this Consent
Judgment shall be required to pay the prevailing Party’s reasonable attorneys’ fees and costs
unless the unsuccessful Party has acted with substantial justification. For purposes of this
Consent Judgment, the term substantial justification shall carry the same meaning as used in the
Civil Discovery Act of 1986, Code of Civil Procedure §§ 2016.010, et seg.
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11.3 Notwithstanding Section 11.1, a Party who prevails in a contested enforcement
action brought pursuant to Section 4 may seek an award of attorneys’ fees pursuant to Code of
Civil Procedure § 1021.5 against a Party that acted with substantial justification. The Party
seeking such an award shall bear the burden of meeting all of the elements of § 1021.5, and this
provision shall not be construed as altering any procedural or substantive requirements for
obtaining such an award.
11.4 Nothing in this Section 11 shall preclude a party from seeking an award of
sanctions pursuant to law.
12. ENTIRE AGREEMENT
12.1 _ This Consent Judgment contains the sole and entire agreement and understanding
of the Parties with respect to the entire subject matter hereof, and any and all prior discussions,
negotiations, commitments or understandings related thereto, if any, are hereby merged herein
and therein. There are no warranties, representations or other agreements between the Parties
except as expressly set forth herein. No representations, oral or otherwise, express or implied,
other than those specifically referred to in this Consent Judgment have been made by any Party
hereto. No other agreements not specifically contained or referenced herein, oral or otherwise,
shall be deemed to exist or to bind any of the Parties hereto. Any agreements specifically
contained or referenced herein, oral or otherwise, shall be deemed to exist or to bind any of the
Parties hereto only to the extent that they are expressly incorporated herein. No supplementation,
modification, waiver or termination of this Consent Judgment shall be binding unless executed in
writing by the Party to be bound thereby. No waiver of any of the provisions of this Consent
Judgment shall be deemed or shall constitute a waiver of any of the other provisions hereof
whether or not similar, nor shall such waiver constitute a continuing waiver.
13. RETENTION OF JURISDICTION
13.1 This Court shall retain jurisdiction of this matter to implement or modify the
Consent Judgment.
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CONSENT JUDGMENT — WHOLESOME SWEETENERS, INC. — CASE NO. CGC-19-5757731] 14. AUTHORITY TO STIPULATE TO CONSENT JUDGMENT
14.1 Each signatory to this Consent Judgment certifies that he or she is fully authorized
by the Party he or she represents to stipulate to this Consent Judgment and to enter into and
execute the Consent Judgment on behalf of the Party represented and legally to bind that Party.
2
3
4
5 | 15. SUCCESSORS AND ASSIGNS
6 15.1 | This Consent Judgment shall apply to and be binding upon CEH and Settling
7 || Defendant, and their respective divisions, subdivisions, and subsidiaries, and the successors or
8 || assigns of any of them.
9 | 16. NOEFFECT ON OTHER SETTLEMENTS
10 15.1 Nothing in this Consent Judgment shall preclude CEH from resolving any claim
11 | against an entity that is not Settling Defendant on terms that are different than those contained in
12 | this Consent Judgment.
13 | 17. EXECUTION IN COUNTERPARTS
14 17:1 The stipulations to this Consent Judgment may be executed in counterparts.and by
15 | means of facsimile or portable document format (pdf), which taken together shall be deemed to
16 | constitute one document.
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PY YN YN ND Ye Be Be ewe Be Be ewe Be ee
A nF BY = SO ww ADA A BBY FB GS
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IT IS SO STIPULATED:
Dated: _?/j2 2019
Dated: 2019
IT IS SO ORDERED, ADJUDGED,
AND DECREED —
Dated:
_ CENTER FOR ENVIRONMENTAL
HEALTH
Jhb
Signature
Mick tel G-REFN
Printed Name
CEO
Title
WHOLESOME SWEETENERS, INC.
Signature
Printed Name
Title
Judge of the Superior Court
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CONSENT JUDGMENT — WHOLESOME SWEETENERS, INC. - CASE NO. CGC-19-575773YP YP YP NR NY NY Be Be Be we ewe ew ee ee
NaF BH KF SoH DAA ROH AS
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Coe YW DH BR wW HD
IT IS SO STIPULATED:
Dated:
2019
Dated: 7~I&L— , 2019
IT ISSO ORDERED, ADJUDGED,
AND DECREED
CENTER FOR ENVIRONMENTAL
HEALTH
Signature
Printed Name
Title
WHOLESOME SWEETENERS, INC.
[pW
Signature
Nite Wire eron)
Printed Name
C-E-0O.
Title
Eth uP G—
ue CAH. Al djl
Sudge bf the Superfor Court
ETHAN P. SCHULMAN
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27 28 DOCUMENT PREPARED ‘ON RECYCLED PAPER Popa 14 b Crungl FI LED fr hint OCT 31 2019 Ge bet COURT BY Deputy Clerk SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO CENTER FOR ENVIRONMENTAL HEALTH, Case No. CGC-19-575773 Plaintiff, Rorosnereo [P. 'ONSENT v. JUDGMENT AS TO WHOLESOME SWEETENERS, INC. WHOLESOME SWEETENERS, INC., et al., Defendants. -I- CONSENT JUDGMENT ~ WHOLESOME SWEETENERS, INC, — CASE NO. CGC-19-575773oOo ND 27 28 DOCUMENT PREPARED ‘ON RECYCLED PAPER 1. INTRODUCTION 1d The Parties to this Proposition 65 consent judgment (“Consent Judgment”) are the Center For Environmental Health (“CEH”), a California non-profit corporation, and Wholesome Sweeteners, Inc. (“Settling Defendant”).! CEH and Settling Defendant (the “Parties”) enter into this Consent Judgment to settle certain claims asserted by CEH against Settling Defendant as set forth in the operative complaint (“Complaint”) in the above-captioned matter. 1.2 This Consent Judgment covers the lead and acrylamide content of molasses that is packaged by Settling Defendant for consumer use and then offered for retail sale by Settling Defendant or any other direct or indirect downstream entity to residents of the State of California, whether in Settling Defendant’s own brand name or as privately labeled (“Covered Products”). Covered Products do not include molasses packaged by Settling Defendant for commercial use or the resulting products that utilize such commercial molasses as an ingredient. A list of all privately labeled Covered Products that are currently sold by Settling Defendant and covered by this Consent Judgment is attached hereto as Exhibit A. ten 1.3. On February 8, 2017, CEH provided a 60-day Notice of Violation of Proposition 65 to the California Attorney General, the District Attorneys of every county in California, the City Attorneys of every California city with a population greater than 750,000 and to Settling Defendant, alleging that Settling Defendant violated Proposition 65 by exposing persons to acrylamide contained in Covered Products without first providing a clear and reasonable Proposition 65 warning. 1.4 On September 7, 2018, CEH provided a 60-day Notice of Violation of Proposition 65 to the California Attorney General, the District Attorneys of every county in California, the City Attorneys of every California city with a population greater than 750,000 and to Settling Defendant, alleging that Settling Defendant violated Proposition 65 by exposing persons to lead and lead compounds (“Lead”) contained in Covered Products without first providing a clear and reasonable Proposition 65 warning. ' Proposition 65 is codified in California Health & Safety Cgde §§ 25249.5 et seq. CONSENT JUDGMENT — WHOLESOME SWEETENERS, INC. — CASE NO. CGC-19-57577327 28 DOCUMENT PREPARED ON RECYCLED PAPER 1.5 Settling Defendant is a corporation or other business entity that manufactures, distributes, sells or offers for sale Covered Products that are sold in the State of California or has done so in the past. 1.6 On May 7, 2019, CEH filed the Complaint in the above-captioned matter naming Settling Defendant as a defendant in the action. 1.7 For purposes of this Consent Judgment only, the Parties stipulate that this Court has jurisdiction over the allegations of violations contained in the Complaint and personal jurisdiction over Settling Defendant as to the acts alleged in the Complaint, that venue is proper in the County of San Francisco and that this Court has jurisdiction to enter and enforce this Consent Judgment as a full and final resolution of all claims which were or could have been raised in the Complaint based on the facts alleged therein with respect to Covered Products manufactured, distributed and/or sold by Settling Defendant. 1.8 Nothing in this Consent Judgment is or shall be construed as an admission by the Parties of any fact, conclusion of law, issue of law or violation of law, nor shall compliance with the Consent Judgment constitute or be construed as an admission by the Parties of any fact, conclusion of law, issue of law or violation of law. Nothing in this Consent Judgment shall prejudice, waive or impair any right, remedy, argument or defense the Parties may have in any other pending or future legal proceedings. This Consent Judgment is the product of negotiation and compromise and is accepted by the Parties solely for purposes of settling, compromising and resolving issues disputed in this Action. 2. DEFINITIONS 2.1. The “ Effective Date” shall mean the date Notice of Entry of this Consent Judgment is served. 2.2. The “Acrylamide Level” shall mean a concentration level of no more than 325 parts per billion (“ ppb” ) acrylamide by weight. 2.3. The “Lead Level” shall mean a concentration level of no more than 35 ppb Lead by weight. 3. CONSENT JUDGMENT - WHOLESOME SWEETENERS, INC. — CASE NO. CGC-19-57577328 DOCUMENT PREPARED ‘ON RECYCLED PAPER 3. INJUNCTIVE RELIEF 3.1 Clear and Reasonable Warnings for Covered Products. As of the Effective Date, no Covered Product that: ¢ contains acrylamide in a concentration exceeding the Acrylamide Level; or ¢ contains lead in a concentration exceeding the Lead Level, shall be sold or offered for sale by Settling Defendant unless Settling Defendant provides a clear and reasonable warning as further specified in this Section 3. 3.2 Warning Language. The warning required by Section 3.1 for Covered Products shall state the following: 3.2.1 For Covered Products that contain acrylamide in a concentration exceeding the Acrylamide Level: WARNING: Consuming this product can expose you to chemicals including acrylamide, which is known-to the State of California to cause cancer. For more information go to www.P65 Warnings.ca.gov/food. 3.2.2 -For Covered Products that contain Lead in a concentration exceeding the Lead Level: WARNING: Consuming this product can expose you to chemicals including lead, which is known to the State of California to cause birth defects or other reproductive harm. For more information go to www.P65 Warnings.ca.gov/food. 3.2.3. For Covered Products that contain both acrylamide in a concentration exceeding the Acrylamide Level and Lead in a concentration exceeding the Lead Level: -4- CONSENT JUDGMENT — WHOLESOME SWEETENERS, INC. - CASE NO. CGC-19-575773Coe QR DH PB WN = YP N NN NR KY NY Se Be we Be we ewe ew eB DA vw Ww NON = SOD we ADA RF BW NH SH S 27 28 DOCUMENT PREPARED ON RECYCLED PAPER WARNING: Consuming this product can expose you to chemicals including lead and acrylamide, which are known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to www.P65 Warnings.ca.gov/food. The word “WARNING” must be in all capital letters and bold print. 3.3. Placement of Warning Language. The warning language set forth in Section 3.2 must be displayed with such conspicuousness as compared with other words, statements, designs or devices as to render the warning likely to be read and understood by an ordinary consumer under customary conditions of purchase and use. The warning language shall appear on the container’s label, set off from other surrounding information or enclosed in a box. If the product’s label contains other warnings or nutritional information in a language other than English, the warning language set forth in Section 3.2 must also be displayed on the label in that language in addition to English. 3.4 Internet Sales. With respect to internet sales of Covered Products, the warning language set forth in Section 3.2 must be prominently displayed in such a manner that it is likely to be read and understood as being applicable to the Covered Product being sold prior to the authorization of or actual payment by the purchaser. For purposes of this Section 3.4, the warning language is not prominently displayed if the customer must search for the warning language in the general content of Settling Defendant’s website or if a reasonable consumer cannot determine the specific Covered Product to which the warning applies. If the product display page contains other warnings or nutritional information in a language other than English, the warning language set forth in Section 3.2 must also be displayed on the label in that language in addition to English. 3.5 Commercial Products. The requirements set forth in this Section 3 do not apply to molasses that is packaged by the Settling Defendant in containers of more than one quart which are intended for commercial use. 5. CONSENT JUDGMENT — WHOLESOME SWEETENERS, INC. — CASE NO. CGC-19-575773co Oe YN DW BW N yboeN NY NNN NY Be Be ee ee eB eB eB A vn YW NH = SO we ADA BF BH SF ST 27 28 DOCUMENT PREPARED ‘ON RECYCLED PAPER 3.6 Additional Time. Notwithstanding the foregoing, to avoid waste, Settling Defendant may have until the Effective Date to bottle Covered Product in consumer packaging that was printed prior to the execution of this Consent Judgment, and until December 31, 2019 to sell or distribute from its inventory Covered Products bottled in such consumer product packaging, without the warning required by Sections 3.1 and 3.2. 4. ENFORCEMENT Al Enforcement Procedures. This Court shall have exclusive jurisdiction over all matters regarding enforcement of the Consent Judgment. Prior to bringing any motion or order to show cause to enforce the terms of this Consent Judgment, a Party seeking to enforce shall provide the violating party thirty (30) days advanced written notice of the alleged violation. The Parties shall meet and confer during such thirty (30) day period in an effort to try to reach agreement on an appropriate cure for the alleged violation. After such thirty (30) day period, the Party seeking to enforce may, by new action, motion or order to show cause before the Superior Court of San Francisco, seek to enforce Proposition 65 or the terms and conditions contained in this Consent Judgment. 42 Failure to Comply With Payment Obligations. Notwithstanding the provisions of the Enforcement of Judgments Law and CCP § 780.160, in the event that Settling Defendant does not comply fully with its payment obligations under Section 5, in addition to any other enforcement mechanism available to CEH, CEH may obtain an order requiring Settling Defendants to submit to a debtors exam. In the event that Settling Defendants fail to submit to any such debtors exam ordered by the Court, CEH may seek an order holding Settling Defendant in contempt of court. 5. PAYMENTS 5.1 Payments by Settling Defendant. On or before ten (10) days following the Effective Date, Settling Defendant shall pay the total sum of $197,500 as a settlement payment as further set forth in this Section. 5.2 Allocation of Payments. The total settlement amount for Settling Defendant shall -6- CONSENT JUDGMENT — WHOLESOME SWEETENERS, INC. - CASE NO. CGC-19-575773oD Om ND WH RB WN | YPN NY N NR NK NY He | ee Be Be eH Be Be eB DA A BF YB NYH |= So we ADA A RDN | 27 28 DOCUMENT PREPARED ‘ON RECYCLED PAPER be paid in five (5) separate checks in the amounts specified below and delivered as set forth below. Any failure by Settling Defendant to comply with the payment terms herein shall be subject to a stipulated late fee to be paid by Settling Defendant in the amount of $100 for each day the full payment is not received after the applicable payment due date set forth in Section 5.1. The late fees required under this Section shall be recoverable, together with reasonable attorneys’ fees, in an enforcement proceeding brought pursuant to Section 4 of this Consent Judgment. The funds paid by Settling Defendant shall be allocated as set forth below between the following categories and made payable as follows: 5.2.1 A civil penalty in the amount of $36,343 pursuant to Health & Safety Code § 25249.7(b). The civil penalty payment shall be apportioned in accordance with Health & Safety Code § 25249.12 (25% to CEH and 75% to the State of California's Office of Environmental Health Hazard Assessment (“OEHHA”)). Accordingly, the OEHHA portion of the civil penalty payment for $27,257 shall be made payable to OEHHA and associated with taxpayer identification number 68-0284486. This payment shall be delivered as follows: For United States Postal Service Delivery: Attn: Mike Gyurics Fiscal Operations Branch Chief Office of Environmental Health Hazard Assessment P.O. Box 4010, MS #19B Sacramento, CA 95812-4010 For Non-United States Postal Service Delivery: Attn: Mike Gyurics Fiscal Operations Branch Chief Office of Environmental Health Hazard Assessment 1001 I Street, MS #19B Sacramento, CA 95814 The CEH portion of the civil penalty payment for $9,086 shall be made payable to the Center for Environmental Health and associated with taxpayer identification number 94-3251981. This payment shall be delivered to Lexington Law Group, 503 Divisadero Street, San Francisco, CA 94117. -7- CONSENT JUDGMENT - WHOLESOME SWEETENERS, INC. - CASE NO. CGC-19-575773oe ND HD BF WN 10 28 DOCUMENT PREPARED ‘ON RECYCLED PAPER 5.2.2 An Additional Settlement Payment (“ASP”) in the amount of $27,257 to CEH pursuant to Health & Safety Code § 25249.7(b), and California Code of Regulations, Title 11, § 3204. CEH intends to place these funds in CEH’s Toxics in Food Fund and used to support CEH programs and activities that seek to educate the public about toxic chemicals in food, to work with the food industry and agriculture interests to reduce exposure to toxic chemicals in food and to thereby reduce the public health impacts and risks of exposure to acrylamide, Lead and other toxic chemicals in food sold in California. CEH shall obtain and maintain adequate records to document that ASPs are spent on these activities and CEH agrees to provide such documentation to the Attorney General within thirty days of any request from the Attorney General. The payment pursuant to this Section shall be made payable to the Center for Environmental Health and associated with taxpayer identification number 94-3251981. This payment shall be delivered to Lexington Law Group, 503 Divisadero Street, San Francisco, CA 94117. 5.2.1 Settling Defendant shall pay $133,900 as a reimbursement of a portion of CEH’s reasonable attorneys’ fees and costs. The attorneys’ fees and cost reimbursement shall be made in two separate checks as follows: (a) $117,500 payable to the Lexington Law Group and associated with taxpayer identification number 94-3317175; and (b) $16,400 payable to the Center For Environmental Health and associated with taxpayer identification number 94- 3251981. Both of these payments shall be delivered to Lexington Law Group, 503 Divisadero Street, San Francisco, CA 94117. 5.2.2 To summarize, Settling Defendants shall deliver checks made out to the payees and in the amounts set forth below: -8- CONSENT JUDGMENT — WHOLESOME SWEETENERS, INC. — CASE NO. CGC-19-575773Ceo ND 27 28 DOCUMENT PREPARED ON RECYCLED PAPER Payee Type Amount Deliver To OEHHA per Section OEHHA Penalty $27,257 5.2.1 Center For Environmental Health _| Penalty $9,086 LLG Center For Environmental Health | ASP $27,257 LLG Lexington Law Group Fee and Cost | $117,500 LLG Center For Environmental Health | Fee and Cost | $16,400 LLG 6. MODIFICATION AND DISPUTE RESOLUTION 6.1 | Modification. This Consent Judgment may be modified from time to time by express written agreement of the Parties, with the approval of the Court, or by an order of this Court upon motion and in accordance with law. 6.2 Notice; Meet and Confer. Any party seeking to modify this Consent Judgment shall attempt in good faith to meet and confer with the other party prior to. filing a motion to modify the Consent Judgment. 7. CLAIMS COVERED AND RELEASE 71 Provided that Settling Defendant complies in full with its obligations under Section 5, this Consent Judgment is a full, final and binding resolution between CEH on behalf of itself and the public interest and Settling Defendant and its parents, subsidiaries, affiliated entities that are under common ownership, directors, officers, employees, agents, shareholders, successors, assigns, and attorneys (“Defendant Releasees”), and all entities to which Settling Defendant distributes or sells Covered Products, such as distributors, wholesalers, customers, retailers (including, but not limited to Save Mart Supermarkets and Target Corporation), franchisees, licensors and licensees (“Downstream Defendant Releasees”), of any violation of Proposition 65 based on failure to warn about alleged exposure to acrylamide or Lead contained in Covered Products that were sold or distributed by Settling Defendant prior to the Effective Date. -9- CONSENT JUDGMENT — WHOLESOME SWEETENERS, INC. — CASE NO. CGC-19-57577327 28 DOCUMENT PREPARED ON RECYCLED PAPER 7.2 Provided that Settling Defendant complies in full with its obligations under Section 5, CEH, for itself, its agents, successors and assigns, releases, waives and forever discharges any and all claims against Settling Defendant, Defendant Releasees and Downstream Defendant Releasees arising from any violation of Proposition 65 or any other statutory or common law claims that have been or could have been asserted by CEH individually or in the public interest regarding the failure to warn about exposure to acrylamide or Lead contained in Covered Products sold or distributed by Settling Defendant prior to the Effective Date. 7.3 Provided that Settling Defendant complies in full with its obligations under Section 3 hereof, compliance with the terms of this Consent Judgment by Settling Defendant shall constitute compliance with Proposition 65 by Settling Defendant, Defendant Releasees and Downstream Defendant Releasees with respect to any alleged failure to warn about acrylamide or Lead in Covered Products sold by Settling Defendant after the Effective Date. Notwithstanding the foregoing, to the extent that a Downstream Defendant Releaseee offers Covered Products for sale to California consumers via the internet following the Effective Date that have been labeled with warnings as required under Sections 3.1 and 3.2, such Downstream Defendant Releasee shall not be deemed in compliance with Proposition 65 under this Section unless it provides internet warnings for the Covered Products in question in a manner compliant with Section 3.4 hereof. 8. PROVISION OF NOTICE 8.1 When CEH is entitled to receive any notice under this Consent Judgment, the notice shall be sent by first class and electronic mail to: Eric S. Somers Lexington Law Group 503 Divisadero Street San Francisco, CA 94117 esomers@lexlawgroup.com 8.2 When Settling Defendant is entitled to receive any notice under this Consent Judgment, the notice shall be sent by first class and electronic mail to: -10- CONSENT JUDGMENT ~ WHOLESOME SWEETENERS, INC. — CASE NO. CGC-19-57577327 28 DOCUMENT PREPARED ON RECYCLED PAPER Nigel Willerton Chief Executive Officer Wholesome Sweeteners, Inc. 1 Sugar Creek Center Blvd. Suite 500 Sugar Land, TX 77478 Nigel@wholesomesweet.com Robert L. Falk Morrison & Foerster LLP 425 Market Street, 32" Floor San Francisco, CA 94105 rfalk@mofo.com Any Party may modify the person and/or address to whom the notice is to be sent by sending the other Party notice by first class and electronic mail. , 9. COURT APPROVAL 9.1 This Consent Judgment shall become effective upon the date signed by CEH and Settling Defendant, whichever is later, provided however, that CEH shall prepare and file a Motion for Approval of this Consent Judgment and Settling Defendant shall support approval of such Motion. 9.2 If this Consent Judgment is not entered by the Court, it shall be of no further force or effect and shall not be introduced into evidence or otherwise used in any proceeding for any purpose. 10. GOVERNING LAW AND CONSTRUCTION 10.1 The terms of this Consent Judgment shall be governed by the laws of the State of California. 11. ATTORNEYS’ FEES 11.1 A Party who unsuccessfully brings or contests an action arising out of this Consent Judgment shall be required to pay the prevailing Party’s reasonable attorneys’ fees and costs unless the unsuccessful Party has acted with substantial justification. For purposes of this Consent Judgment, the term substantial justification shall carry the same meaning as used in the Civil Discovery Act of 1986, Code of Civil Procedure §§ 2016.010, et seg. -ll- CONSENT JUDGMENT — WHOLESOME SWEETENERS, INC. — CASE NO. CGC-19-57577328 DOCUMENT PREPARED ‘ON RECYCLED PAPER 11.3 Notwithstanding Section 11.1, a Party who prevails in a contested enforcement action brought pursuant to Section 4 may seek an award of attorneys’ fees pursuant to Code of Civil Procedure § 1021.5 against a Party that acted with substantial justification. The Party seeking such an award shall bear the burden of meeting all of the elements of § 1021.5, and this provision shall not be construed as altering any procedural or substantive requirements for obtaining such an award. 11.4 Nothing in this Section 11 shall preclude a party from seeking an award of sanctions pursuant to law. 12. ENTIRE AGREEMENT 12.1 _ This Consent Judgment contains the sole and entire agreement and understanding of the Parties with respect to the entire subject matter hereof, and any and all prior discussions, negotiations, commitments or understandings related thereto, if any, are hereby merged herein and therein. There are no warranties, representations or other agreements between the Parties except as expressly set forth herein. No representations, oral or otherwise, express or implied, other than those specifically referred to in this Consent Judgment have been made by any Party hereto. No other agreements not specifically contained or referenced herein, oral or otherwise, shall be deemed to exist or to bind any of the Parties hereto. Any agreements specifically contained or referenced herein, oral or otherwise, shall be deemed to exist or to bind any of the Parties hereto only to the extent that they are expressly incorporated herein. No supplementation, modification, waiver or termination of this Consent Judgment shall be binding unless executed in writing by the Party to be bound thereby. No waiver of any of the provisions of this Consent Judgment shall be deemed or shall constitute a waiver of any of the other provisions hereof whether or not similar, nor shall such waiver constitute a continuing waiver. 13. RETENTION OF JURISDICTION 13.1 This Court shall retain jurisdiction of this matter to implement or modify the Consent Judgment. -12- CONSENT JUDGMENT — WHOLESOME SWEETENERS, INC. — CASE NO. CGC-19-5757731] 14. AUTHORITY TO STIPULATE TO CONSENT JUDGMENT 14.1 Each signatory to this Consent Judgment certifies that he or she is fully authorized by the Party he or she represents to stipulate to this Consent Judgment and to enter into and execute the Consent Judgment on behalf of the Party represented and legally to bind that Party. 2 3 4 5 | 15. SUCCESSORS AND ASSIGNS 6 15.1 | This Consent Judgment shall apply to and be binding upon CEH and Settling 7 || Defendant, and their respective divisions, subdivisions, and subsidiaries, and the successors or 8 || assigns of any of them. 9 | 16. NOEFFECT ON OTHER SETTLEMENTS 10 15.1 Nothing in this Consent Judgment shall preclude CEH from resolving any claim 11 | against an entity that is not Settling Defendant on terms that are different than those contained in 12 | this Consent Judgment. 13 | 17. EXECUTION IN COUNTERPARTS 14 17:1 The stipulations to this Consent Judgment may be executed in counterparts.and by 15 | means of facsimile or portable document format (pdf), which taken together shall be deemed to 16 | constitute one document. 28 -13- DOCUMENT PREPARED ‘ON RECYCLED PAPER CONSENT JUDGMENT — WHOLESOME SWEETENERS, INC. — CASE NO. CGC-19-575773oOo em YN HD DW Bw HY HY PY YN YN ND Ye Be Be ewe Be Be ewe Be ee A nF BY = SO ww ADA A BBY FB GS 27 28 DOCUMENT PREPARED ‘ON RECYCLED PAPER, IT IS SO STIPULATED: Dated: _?/j2 2019 Dated: 2019 IT IS SO ORDERED, ADJUDGED, AND DECREED — Dated: _ CENTER FOR ENVIRONMENTAL HEALTH Jhb Signature Mick tel G-REFN Printed Name CEO Title WHOLESOME SWEETENERS, INC. Signature Printed Name Title Judge of the Superior Court -14- CONSENT JUDGMENT — WHOLESOME SWEETENERS, INC. - CASE NO. CGC-19-575773YP YP YP NR NY NY Be Be Be we ewe ew ee ee NaF BH KF SoH DAA ROH AS 27 28 DOCUMENT PREPARED ‘ON RECYCLED PAPER Coe YW DH BR wW HD IT IS SO STIPULATED: Dated: 2019 Dated: 7~I&L— , 2019 IT ISSO ORDERED, ADJUDGED, AND DECREED CENTER FOR ENVIRONMENTAL HEALTH Signature Printed Name Title WHOLESOME SWEETENERS, INC. [pW Signature Nite Wire eron) Printed Name C-E-0O. Title Eth uP G— ue CAH. Al djl Sudge bf the Superfor Court ETHAN P. SCHULMAN -14- CONSENT JUDGMENT - WHOLESOME SWEETENERS, INC. - CASE NO. CGC-19-575773