Stipulation,Agreement: ENVIRONMENTAL RESEARCH CENTER, VS. FIRST FITNESS INTERNATIONAL, INC. et al

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                                MOON

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Sep-23-2014 2:21 pm

Case Number: CGC-13-532166
Filing Date: Sep-23-2014 2:21
Filed by: LESLEY FISCELLA

Juke Box: 001 Image: 04632246
TEXT JUDGMENT

ENVIRONMENTAL RESEARCH CENTER, VS. FIRST FITNESS INTERNATIONAL,
INC. et al

001004632246

Instructions:
Please place this sheet on top of the document to be scanned.rs

MICHAEL FREUND & ASSOCIATES
Michael Freund (State Bar No. 99687)
Ryan Hoffman (State Bar No. 283297)
1919 Addison Street, Suite 105

Berkeley, CA 94704

Tel: (510) 540-1992

Fax: (510) 540-5543

Email: freundi@aol.com

Attomeys for Plaintiff
ENVIRONMENTAL RESEARCH CENTER

Ryan M. Andrews (SBN 274106) +
Dan Chammas (SBN 204825)

Venable LLP

2049 Century Park Bast, Suite 2100

Los Angeles, CA 90067

Tel: (310) 229-0344

Fax: (310) 229-9901

Email: RMAndrews@Venable.com

Attorney for Defendant
FIRST FITNESS INTERNATIONAL, INC.

f : SUPERIOR COURT OF THE STATE OF CALIF. ORNIA

: COUNTY OF SAN FRANCISCO
ENVIRONMENTAL RESEARCH CASE NO, CGC-13-532166
CENTER, a California non-profit
cotporation, [PROBOSED] STIPULATED
; CONSENT JUDGMENT; [PROPOSED]
i Plaintiff, ORDER.
toy Health & Safety Code § 25249.5 et seq.

é
FIRST FITNESS INTERNATIONAL, INC.,
i

Defendant.

1, - INTRODUCTION
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2 LL

profit corporation, as a private enforcer, and in the public interest, initiated this action by filing

‘{PROPOSED] STIPULATED CONSENT JUDGMENT; POREEEER-

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On June 17, 2013 Plaintiff Environmental Research Center (“ERC”), a non-

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Ban Francisco Co!

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CLERK OF
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Action Filed: June 17, 2013
Trial Date: None set

, CASE NO. CGC-13-532166a Complaint for Injunctive and Declaratory relief ‘and Civil Penalties (the “Complaint”)
pursuant to the provisions of California Health and Safety Code section 25249.5 et seq. .
(Proposition 65”), against FIRST FITNESS INT: ERNATIONAL, INC. (‘First Fitness” or
“Defendant”, In this action, ERC alleges that the Products manufactured, distributed or sold
by Defendant, as more fully described below, contain lead, a chemical listed under Proposition
65 as a carcinogen and reproductive toxin, and that such products expose consumers at a level
reguiing a Proposition 65 warning. These products are: FirstFitness RejuvaCel with
Giucosanol; FirstFitness LipoMax Liver Cleanse; FirstFitness Renn Ultimate Colon Cleanse;
FirstFitness Slim ‘N Up! Xtreme; FirstFitness Vital Green Plus; and FirstFitness Suddenly Slim
Body FX Tropical Créme Weight Control Beverage Mix (collectively the “Covered Products”).
ERC and Defendant are referred to individually as a “Party” or collectively as the “Parties,”

f 1.2 ERC is a California non-profit corporation dedicated to, among other causes,
helping safeguard the public from health hazards by reducing the use and misuse of hazardous
and toxic chemicals, facilitating a safe environment for consumers and employees, and
encouraging corporate responsibility, oe . ,
‘ 13 Defendant is a business entity that employed ten or more persons. Defendant
arranges the manufacture, distribution and sale of the Covered Products.

1.4 The Complaint is based on allegations contained i in ERC’s Notice of Violation,

an August 5, 2011 that was served on the California Attorney General, other public

enforcers, and Defendant. A true and correct copy of the Notice of Violation is attached as
bh ie

‘if A. More than 60 days have passed since th . Notice of Violation was mailed, and no

deignated governmental entity has filed a complaint against Defendant with regard to the

Covered Products or the alleged violations.

[PROPOSED] STIPULATED CONSENT JUDGMENT; [PROPSREETORDER ‘CASE NO. CGC-13-532166

a Easy
t :LS ERC’s Notice of Violation and the Complaint allege that use of the Covered
Pyoduet exposes persons in California to lead without first providing clear and reasonable
wamings in violation of California Health and Safety Code section 25249.6, Defendant denies

all material allegations contained i in the Notice of Violation and Complaint and specifically

aehies that the Covered Products required a Proposition 65 warning or otherwise caused harm
to: any person. Except for the representations made above, nothing in the Consent Judgment
shall be construed as an admission by Defendant of ; any fact, issue of law, or violation of law,
nor shall compliance with the Consent Judgment constitute or be construed as an admission by
Defendant of any fact, issue of. Jaw, or violation of law, at any time, for, any purpose,

1.6 The Parties have entered into this, Consent Judgment in order to settle,

compromise and resolve disputed claims and thus, avoid prolonged and costly litigation.

Nothing in this Consent Judgment shall constitute or: be construed as an admission by any of

the, 3, Parties, or by any of their Tespective officers, directors, shareholders, employees, agents,

parent companies, subsidiaries, divisions, affiliates, [

ises, licensees, customers, suppliers,
distributors, wholesalers, or retailers,

; 7 Except as expressly set forth herein, nothing in this Consent Judgment shall
prejudice, waive, or impair any right, remedy, argument, or defense the Parties may have in any

other or future Jegal proceeding unrelated to these Proceedings.

; 1.8 — The Effective Date of this Consent Judgment is the date on which it is entered as

a Judgment by this Court.

, 19 Subsequent to ERC’s Notice of Violatioi First Fitness discontinued sales of Slind
‘N Up to California,

t

[BRQPASED] STIPULATED CONSENT JUDGMENT; [PRORSSERESRDER “CASENO, CGC-13-532166

f2, JURISDICTION AND VENUE

For purposes of this Consent Judgment only, the Parties stipulate that this Court has
wisiton over the allegations of violations contained 'in ‘the Complaint and personal jurisdiction
over Defendant as to the acts alleged in the Complaint, that venue is, ; Proper in San Francisco
County, and that this Court has jurisdiction to enter this Consent Judement as a full and final
resolution of all claims which were ot could have been asserted in his action’ based on the facts
alleged in the Notice of Violation and the Complaint.

3. INJUNCTIVE RELIEF, REFORMULATION, TESTING AND WARNINGS

3.1 On and after the Effective Date of this Consent Judgment, Defendant shall not
distribute into the State of California or sell in the State ‘of California any Covered Product for
which the maximum daily dose recommended on the, label contains more than 0.5 micrograms
(meg) of lead, unless the warnings are provided as set forth in section 3.2.

» 3.2. Clear and Reasonable Warnings

C

‘ For Covered Products that cause exposures in excess of that permitted by
Patagraph 1, Defendant shall provide the following warning (the language in brackets in the
warning below is optional): dea ‘
[California Proposition 65] WARNING: This ‘product contains lead, a chemical
Imown [to the State of California] to cause {cancer anal birth defects, or other reproductive

harm.

; Defendant shall use the term “cancer and” in the’ warning only if the maximum daily dose
recommended on the label contains more than 15 micrograms of lead as.determined pursuant to

the quality control methodology set forth in Section 3.4. The words “California Proposition 65”

maybe included at Defendant’s option. oer "
| [PROPOSED} STIPULATED CONSENT JUDGMENT s{PROPOSERFORDER. :CASE NO, CGC-13-532166First Fitness shall provide the warning on all of the following: 1) on First Fitness’s
clieckout Page on its website for California consumers; 2) on First Fitness’s insert in boxes of
Cévered Products shipped to California; and 3) on First Fitness’s receipt/order confirmation
provided to California customers for Covered Products, .

5

The warning shall appear with such conspicuousness, as compared with other words,
statements, designs, or devices on the labeling, website, package insert, or receipt/order
confirmation provided as to render it likely to be read and understood by an ordinary individual
under customary conditions of purchase or use of the.product. The warning shall not exceed the
language specified in Section 3.2, However, this provision does not prohibit First Fitness from
ingluding information about the Proposition 65 warning separately from the warning on its website
(@g, ona Frequently Asked Questions page). The warning shall be at least the same size as the

largest of any other health or safety warnings on the product container or labeling, website,

package insert, or receipt/order confirmation provided, and the word “WARNING” shall be in all
capital letters and in bold print. The warning shall be contained in the same section that states

other safety warnings concerning the use of the Covered Product, if there are any.

« 3.3. Naturally-Occurring Lead Levels (:":

4;  Ifappropriate, First Fitness may exclude the sum of the amount of lead contained in each
ingredient listed in Table 1 present in the maximum daily serving recommended by First Fitness
in each Covered Product. If First Fitness seeks to subtract out the amount of lead pursuant to this
Section, upon calculating lead content, First Fitness shall provide ERC with the name of the
Covered Product that First Fitness contends contains naturally-occurring lead, the exact
ingredient(s) listed below in Table 1 in the Covered Préduct, the percentage of each ingredient in|
the Covered Product (in grams), and the amount (in grams) in the maximum daily serving
tecommended by First Fitness of each ingredient in T:

[PROPOSED] STIPULATED CONSENT JUDGMENT; [PBEBOSEBPORDER CASE NO. CGC-13-532166First Fitness may update this list from time to tine, First Fitness will be entitled to

submit this information to ERC confidentially, 5

' TABLE 3:

i INGREDIENT NATURALLY-O€CURRING AMOUNT OF LEAD
Calcium (elemental) 0.8 meg lead per gram of clemental calcium
Ferrous Fumarate 0.4 meg lead per gram of ferrous fumarate
Zinc Oxide 8.0 meg lead per gram of zinc oxide

«, | Magnesium Oxide 0.4 meg lead per gram of magnesium oxide

: Potassium Chloride 1.1 meg lead per gram of potassium chloride

5 Cocoa powder 1.0 meg lead per. gram of cocoa powder

4 34° Reformulated Covered Products

A Reformulated Covered Product is one for which the maximum recommended daily
serving on the label contains no more than 0.5 microgeeihs of lead per day as determined by the
quality control methodology described in Section 3.5. ‘A$ used in this Consent Judgment, “no
more than 0.5 micrograms of lead per day” means that the samples of the testing performed by
Defendant under Section 3.5 yield a daily exposure of no more than 0.5 1 micrograms of lead
(wit daily exposure calculated pursuant to Section 3.5 of this Consent Fadgment, after
excluding levels of naturally occurring lead pursuant , Section 3.3. For products that cause
exposures in excess of 0.5 micrograms of lead per dey Defendant shall provide the warning set

forth in Section 3.2,

4

+ Defendant may reformulate the Covered Prodi

to reduce the lead content to below
levels requiring a Proposition 65 warning, in which case;the Parties agree that the Covered
Products may be offered for sale in California without the warnings discussed in this Consent

Judgment. If Defendant contends that a Covered Product has been so reformulated, then at

‘ERpPORED] STIPULATED CONSENT JUDGMENT; [PROPOGEDLGRDER . CASE NO. CGC-13-532166least Once each year, Defendant shall undertake testing of any reformulated Covered Product on
which it does not intend to place a warning label discussed in Section 3.2 above.

Defendant Shall arrange for testing of at least three (3) randomly-selected samples of each such
reformulated Covered Product for lead content, to confirm whether the @ daily dose is more or
less than 0.5 micrograms of lead when taken as directed on the Covered Product’s label. For
Purposes of determining whether a warning, if any, is required pursuant to Section 3 .2, the
highest lead detection result of the three (3) randomly-selected samples of the reformulated

Covered Products will be controlling.

3.5 Testing and Quality Control Meth

i

. In the event that First Fitness chooses to classify a Covered Product as a
e # :

Reformulated Product under Section 3.4 (as opposed to meeting the warning requirements set
" e

out in Section 3.2), the below testing requirements apply.
i

3.5.1 For purposes of this Consent Judgment, daily lead exposure levels shall

be Measured i in micrograms, and shal! be calculated using the following formula: micrograms
of dead per gram of the Covered Product, multiplied by grams of Product per serving of the
Covered Product (using the largest serving size appearing on the Covered Product label),

multiplied by servings of the Covered Product per da

ing the largest number of servings in
a recommended dosage appearing on the Covered P; ict label), which equals micrograms of
lead exposure per day, .
; 3.5.2 All testing pursuant to this Consent Judgment shall be performed using a
laboratory method that complies with the performance and quality control factors appropriate
for the method used, including limit of detection, limit of qualification, accuracy, and precision

and: frees the following criteria: Inductively Coupled Plasma-Mass Spectrometry (ICP-MS)

[re0ROE8e) STIPULATED CONSENT JUDGMENT; [PROPeseBreRUER CASE NO. CGC-13-532166

1achieving a limit of quantification of less than or equal to 0.010 melkg or any other testing
method agreed upon in writing by the Parties,

: 3.5.3 All testing pursuant to this Consent Judgment shall be performed by a
laboratory certified by the California Environmental Laboratory Accreditation Program or a
laboratory that is registered with the United States Food & Drug Administration, a federal
agency, the National Environmental Laboratory Acereditation Program, or similar nationally-
recognized accrediting organization for the analysis of “heavy metals or a laboratory that is
approved by, accredited by, or registered with the United States Food & Drug Administration
for the a federal agency, the National Environmental Laboratory Aceteitation Program, or
aia nationally-recognized accrediting organization to perform analysis of heavy metals First
Fitness may test the Covered Products if First Fitness is a qualified laboratory as described
above. Nothing in this Consent Judgnient shall mit Defendant 'S ability to conduct, or require
that others conduct, additional testing of the Covered . Products, including the raw materials
used i in their manufacture.

4: SETTLEMENT PAYMENT

u

; 41 In full satisfaction of all potential civil penalties, Payment in lieu of civil
penalties, attorney’s fees and costs (which includes, but is not limited to, filing fees and costs of
attomeys and testing nutritional health supplements), Defendant shall make a total payment of
$60, 000.00. Said payment shall be for the following: :

42 $10,488.00 shall be payable as civil penalties pursuant to California Health
and Safety Code section 25249.7(b)(1). Of this amount, $7,866.00 shall be payable to the.
Office of Environmental Health Hazard Assessment (“OEHHA”) and $2,622.00 shall be

payable to Environmental Research Center, California Health and Safety Code section

[ER@POSRD] STIPULATED CONSENT JUDGMENT; PROPOSEDPORDER | CASE NO, CGC-13-53216695249.12(6)(1) & (d). Defendant shall send both ci penalty payments to ERC’s counsel who
will be responsible for forwarding the civil Penalty.
i 43 $26,919.00 shall be payable to Brvsonmental Research Center as
reimbursement to ERC for (A) reasonable costs associ: ited with the enforcement of Proposition
65 and other costs incurred as a result of work in bringing this action; and (B) $6,991.00 shall
bé payable to Environmental Research Center in lieu of further civil penalties, for the day-to-
day business activities such as ()) continued enforcement of Proposition 65, which includes
analyzing, researching and testing consumer products that may . contain Proposition 65
chemicals, focusing on the same or similar type of ingestible products that are the subject
mater of the current action; (2) the continued monitoring of past ‘consent judgments and
settlements to ensure companies are in compliance with Proposition.65°

: 44 $10,395.00 shall be payable to Mi nae Freund as reimbursement of ERC’s

attomey’ 's fees and $5,207.00 shall be payable to ‘an, Hoffman as reimbursement of ERC’s

attomey’ 's fees.

: 45 Defendant shall make a total payment of $60, 000. 00 (“Payment”). The
Payment shall be made in twelve equal installments. The first installment of the Payment, in the
amipunt of $5,000.00, is due on the First of the month following the Effective Date. The
remaining eleven payments are due on the First of each -month thereafter, Each installment of
the Payment shall be in the form of a check sent to counsel for ERC, Michael Freund, Michael

Freund & Associates at 1919 Addison Street, Suite ; i Berkeley, CA. 94704 and shall be

delivered on or before the deadline set forth here’ hat installment. The checks shall be

x

mae de payable to “ Michael Freund & Associates.”

4.6 — Inthe event that any payments owed under Section 4 of this Consent Judgment are

| #RREPOSED] STIPULATED CONSENT JUDGMENT; [PReeesenperpeR * CASE NO. CGC-13-532166

» irot remitted on or before the due date, Defendant shall bei in default of its obligations under this
Setlemont Agreement. ERC shall provide written notice to Defendant of any default at: First
Fitness International Inc., 1430 Bradley Lane Suite 196, Carrolton, TX. 75007. If Defendant fails
toyremedy the default within five (5) business days of receiving such notice, then all future
payments due herein shall become immediately due and payable.
5. MODIFICATION OF CONSENT JUDGMENT

5.1 This Consent Judgment may be modified only (@) by wwitten stipulation of the

‘Parties; and (ii) upon entry by the Court of a modified. Consent Judgment.

: 5.2 If either Party seeks to modify this Consent Judgment under Section 5.1, then
the Party requesting the modification must provide iritten notice to the other Party of its in
(‘Notice of Intent”). If the Party receiving the Notice of Intent seeks to meet and na
regarding the proposed modification, then the Party must provide written notice to the othey
Party within thirty (30) days of receiving the Notice of Intent. If such notice is provided in a
timely manner, then the Parties shall meet and confer in good faith as required in this Section!
Ths Parties shall meet'in person or on the telephone withiri thirty (30) days of notification o:
intent to meet and confer. Within thirty (30) days of‘such meeting, if the Party receiving the
Notice of Intent disputes the proposed modification,’ that Party shall provide the other Party 4
written factual basis for its position. The Parties shall continue to meet and confer for ani

additonal thirty (30) days in an effort to resolve any. remaining disputes. The Parties may agree]

in waiting to different deadlines for the meet-and-confe

5.3 In the event that Defendant initiates or otherwise requests a modification
anger Section 5.1, Defendant shall reimburse ERC its costs and reasonable attomey’s fees for

the, time spent in the meet-and-confer process and. filing and arguing a joint motion or
t re

. ;

<{28820SED] STIPULATED CONSENT JUDGMENT: PROPOSED] ORDER ,. CASE NO, CGC-13-532166application in support of a modification of the Consent judgment, as well as ERC’s reasonable
costs.
5.4 Where the meet-and-confer process does not lead to a joint motion or

application in support of a modification of the Consent Judgment, then either Party may seek
a *

judicial relief on its own. In such a situation, the prevailing party may seek to recover costs and
reasonable attorney’s fees, As used in the preceding Sentence, the term “prevailing party”
means a party who is successful in obtaining relief more. favorable to it than the relief that the
other party was amenable to providing during the Parties? good faith attempt to resolve the
digpute that is the subject of the modification. .

6. i RETENTION OF JURISDICTION, ENFORCEMENT OF CONSENT

: JUDGMENT / .

61 This Court shall retain jutisdition of this matter to enforce, modify or

:

terininate this Consent Judgment.

a 6.2 Only after it complies with Section 15 below may any Party, by motion or

application for an order to show cause filed with this Court, enforce the terms and conditions

contained in this Consent Judgment.

i 6.3 If ERC alleges that any Covered Product fails to qualify asa Reformulated|
Covered Product (and for which ERC alleges that no warning has been provided), then ERC
shall inform First Fitness in a reasonably prompt manner of its test results, including information
sufficient to permit First Fitness to identify the Covered Products at issie. The Patties shall firs]

attémpt to resolve the matter prior to ERC taking any ‘further legal action pursuant to Section 15,

7, APPLICATION OF CONSENT JUDGMEN

i This Consent Judgment may apply to, be binding upon, and benefit the Parties and their

g

{RROPOSED| STIPULATED CONSENT JUDGMENT; [PRSPOSEB}ORDER , CASE NO. CGC-13-532166respective officers, directors, shareholders, employees agents, parent ‘companies, subsidiaries,

divisions, affiliates, franchisees, licensees, customers; sxcluding private labelers), distributors,

wholesalers, retailers, predecessors, successors, and assigns. This Consent Judgment shall have no

application to Covered Products which are exclusively: distributed and/or or sold outside the State
of California, With respect to Covered Products that are distributed and/or sold both inside and
outside of California, the requirements contained in this Consent Judgment apply to the Covered
Products only to the extent that the distribution and/or sales occur in California. This Consent
Judgment shall terminate without further action by any Party when Defendant no longer
manufactres distributes or sells all of the Covered Products and all of such Covered Products
previously “distributed for sale in California” have reached their expiration dates and are no longer
sold.

8 ‘ BINDING EFFECT, CLAIMS COVERE!

8.1 . This Consent Judgment is a full, final;‘and binding resolution between ERC, on]
behalf of itself and in the public interest, and Defendant, of any alleged violation of Proposition]
65,0r its implementing regulations for failure to provide Proposition 65 warnings of exposure to}
lead from the handling, use, or consumption of the Covered Products and fully resolves all
claims that have been or could have been asserted in this action up to and including the date off
entry of Judgment for Defendant’s failure to provide Proposition 65 warnings for the Covered
Products as asserted in the Notice of Violation and the:Complaint. ERC, on behalf of itself and

in} the public interest, hereby discharges Defendant, and its respective officers, directors.

shareholders, employees, agents, parent companies; diaries, divisions, affiliates, suppliers,
Defendant), distributors, wholesalers,

retailers, General Research Laboratories, American Nutritional Corporation and all other entitieg

customers (not including private label customers’.

4
in the distribution chain of any Covered Product, and the predecessors, successors and assigns 0:

RGPEsaD] STIPULATED CONSENT JUDGMENT; [PROPOSEDEORDER ‘CASE NO. CGC-13-532166any of them Collectively, “Released Parties” ", froin any and all claims, actions, causes of action,
suits, demands, liabilities, damages, penalties, fees; costs and expenses asserted, or that could
have been asserted, as to any alleged violation of Proposition 65 ‘ ‘arising from the failure io}
provide Proposition 65 warnings on the Covered Products regarding -lead as stated in the Notice
of Violation and the Complaint.

. 8.2 ERC, on behalf of itself only, hereby releases and discharges the Released
Parties from all known and unknown claims for alleged violations of Proposition 65, or for any,
other Statutory ot common law claims, arising from or relating to alleged exposures to in the '
Covered Products as set forth in the Notice of Violation. It is possible that other claims notf

known to the Parties arising out of the facts alleg ‘the Notice of Violation or the Complains

and relating to the Covered Products will develop or ‘be discovered, ERC, on behalf of itself
only, acknowledges that this Consent Judgment is expressly intended to cover and include all]
such claims, including all rights of action therefore. ERC has full knowledge of the contents off
California Civil Code section 1542. ERC, on behalf of itself only, acknowledges that the claims
released i in Sections 8.1 and 8.2 above may include unknown claims, and nevertheless waives}
California Civil Code section 1542 as to any such + unknown claims. California Civil Codd

section 1542 reads as follows:

A GENERAL RELEASE DOES NOT:EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER

EAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF

KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS

: OR HER SETTLEMENT WITH THE DEBTOR.

ERC, on behalf of itself only, acknowledges and understands, the significance and

fev 82

consequences of this specific we waiver of California Civil Code section 1542.

LepROPESED] STIPULATED CONSENT JUDGMENT; [PRAPOSEDT ORDER " CASE NO. CGC-13-5321664 8.3 Compliance with the terms of this Consent Judgment shall be deemed to
éonstitute compliance by any Released Party with Proposition 65 Tegarding alleged exposures
th lead in the Covered Products. we, ;

' 8.4 ERC and Defendant each release: Sait waive all claims they may have against
each other for any statements or actions made or undertaken by them in connection with the
Notice of Violation or the Complaint; provided, however, that nothing in Section 8 shall affect
or Himit any Party’s right to seek to enforce the terms. of this Consent Judgment. ‘
9 SEVERABILITY OF UNENFORCEABLE PROVISIONS‘

In the event that any of the provisions of this Consent Judgment is is held by a court to be
unenforceable, the validity of the remaining enforceable provisions shall not be adversely affected.
1, GOVERNING LAW

The terms and conditions of this Cojisent Judgment. shall be governed by and construed in
accordance with the laws of the State of California,

1, PROVISION OF NOTICE

Awe

All notices required to be given to either Party to this Consent Judgment by the other shall be in
writing and sent to the following agents listed below by: (a) first-class, registered, or certified mail;
(b) overnight courier; or (©) personal delivery. Courtesy copies via email may also be sent.

4 R

FOR ENVIRONMENTAL RESEARCH CENTER:

Chis Heptinstall, Executive Director
Environmental Research Center

3141 Camino Del Rio North, Suite 400
San Diego, CA 92108

With a copy to:

Mi¢hael Freund
Ryan Hoffman

ROROSED] STIPULATED CONSENT JUDGMENT; [PROPOSEDLORDER # CASE NO. CGC-13-532166

i :aN
i

ios Addison Street, Suite 105
Berkeley, CA 94704

Tel: (510) 540-1992

Fax: (510) 540-5543

Email: freundl @aol.com

for FIRST FITNESS INTERNATIONAL, INC;

Ryan M. Andrews

Venable LLP

2049 Century Park Bast, Suite 2100 :
Los Angeles, CA. 9006

Tel: (310) 229-0344

Fax: B10) 229-9901

Email: RMAndrews@Venabie.com

With a copy to:

i
Nigel Branson
First Fitness Intemational Inc,
1430 Bradley Lane Suite 196
Catrolton, TX. 75007
12, COURT APPROVAL A :

é 121 If this Stipulated Consent Todgment is not approved by the Court, it shall be
véid and have no force or effect.
‘ 12.2 ERC shall comply with California Health and Safety'Code section 25249.7(£)
and with Title II of the California Code Regulations, Section 3003.
13, EXECUTION AND COUNTERPARTS

i
This Consent Judgment may be executed in counterparts, ‘which taken together shall be deemed to
cf one document. A facsimile or -pdf signature shall be construed as valid as the original

signature,
4%

&

14, DRAFTING

The terms of this Consent Judgment have been reviewed by the respective counsel for the each

i or
-PROPOSEDPSTIPULATED CONSENT JUDGMENT; [PROPOSEBPERDER CASE NO. CGC-13-532166

4

tZ

Party to this Settlement prior to its signing, and each. Party has had an Opportunity to fully discuss
the terms with counsel. The Parties agree that, in any subsequent interpretation and construction
of this Consent Judgment entered thereon, the terms and provisions shall not be construed against
any Party.

y

15. GOOD FAITH ATTEMPT TO RESOLVE DISPUTES

Ifa dispute arises with Tespect to either Party’s compliance with the terms of this Consent
Jadgment entered by the Court, the Parties shall meet in person or by telephone and endeavor to

resolve the dispute in an amicable manner, No action or motion may be filed in the absence of
2

such a good faith attempt to resolve’ the dispute beforchand. In the event an action or motion is
4

filed, however, the prevailing party may seek to recover costs and. reasonable attomey’s fees. As
4

used in the preceding sentence, the term “prevailing arty” means a party who is successful in
obtaining relief more favorable to it than the relief thet the other party was amenable to providing
during the parties’ good faith attempt to resolve the dispute that is the subject of such enforcement

action.

16 ENTIRE AGREEMENT, AUTHORIZATION -

16.1 This Consent Judgment contains. the sole and. entire agreement and
uniderstanding of the Parties with respect to the entire subject matter, herein, and any and ail
prior discussions, negotiations, commitments and understandings related hereto. No
representations, oral or otherwise, express or implied, other than those contained herein have
been made by any Party. No other agreements, oral or otherwise, unless Specifically referred to
herein, shall be deemed to exist or to bind any Party, *

|-LEBSROSED] STIPULATED CONSENT JUDGMENT; (PROPOSEDTORDER CASE NO. CGC-13-532166

ak‘ 16.2 Each signatory to this Consent Judgment cettifies that he or she is fully

authorized by the Party he or she tepresents to stipulate to this Consent Judgment. Except as

explicitly provided herein, each Party shall bear its own fees and costs,

17. REQUEST FOR FINDINGS, APPROVAL ‘OF SETTLEMENT AND ENTRY OF
% CONSENT JUDGMENT

Thi Consent Judgment has come before the Court upon the request of the Parties. The Parties
request the Court to fully review this Consent Judgment and, being fully informed regarding the
mater which are the subject of this action, to:

Find that the terms and provisions of this Consent Judgment represent a fair and equitable
settlement of all matters raised by the allegations of the Complaint, that the matter has been
diligently prosecuted, and that the public interest is served by such settlement; and

Q Make the findings pursuant to California Health and Safety Code section 25249.7(H(4),
approve the Settlement, and approve this Consent Judgment.

4

I-{PRSPSSED] STIPULATED CONSENT JUDGMENT, [PROPOSEDPORDER CASE NO. CGC-13-532166

y
iITIS SO STIPULATED:

SOUS 2014

Dated: 6/y/ 20 Fong

APPROVED AS TO FORM;

Dated: ¢°/ 7 f_,2014

Dated: 6/ S 2014
3

| senonoseny STIPULATED CONSENT: JUDGMENT; TPROPOSEBPORBER.

ENVIRONMENTAL RESEARCH’
CENTER f]

CN MENTAL RESEARCH

BML

Michael Freund
Attorney for Plaintiff:

By: 4Z ‘
‘an.M. Andrews
poor for Defendant

CASE NO, €GC-18-522166JUDGMENT

Based upon the Parties’ Stipulation, and good cavse appearing, this Consent Judgment is approved
and Judgment is hereby entered according to its terms;-

Superio:

Zrneet N Cystden

Dated: 9} 2. 23 ou Lame lit Gp bor
. judge of the or

f

-8ROPOSED] STIPULATED CONSENT JUDGMENT; {PROPOSEn;oRseR— CASE NO. CGC-13-532166

1

ith. : First¥itness LipoMax Liver Cleanse -
i
1

MICHAEL FREUND:
> AYTORNEY.AT LAW
1915 ADDISON STREET
BERKELEY, CAUFORNIA 64704-101

“TEL 6101840-1992
FAX 5101540.8543
EMAIL FREUNDI@AOL,COM

"August 5, 2087:

NOTICE OF VIOLATIONS OF
CALIFORNIA HEALTH & SAFETY CODE SECTION 25249,5 ET SEQ,
(PROPOSITION 65)

Dear Alleged Violator and the Appropriate Public Eriforcement Agencies;

ERG has identificd violations of California's Safe Drinking Water and.Toxic Enforcement
Act of 1986 (“Proposition 65”), which is codified at California Health & Safety Code §25249.5 et
seq, with.respect to the praducts identified below. These violations have occurred and ‘continue fo
occur because the alleged Violator identified below failed to provide required clear and reasonable
‘warnings with these products, ‘This letter serves as a notice of these violations to the alleged Violator
and the appropriate public enforcement agencies. Purstiant-to Section 25249.7(d) of the statute, ERC
intends to file a private enforcement action in the. public interest 60-days after effective service ofthis

notice unless the public enforcement agencies har
action to rectify these violations.

General Juformation about Proposition 65, A copy ofa summary of Proposition 65,
prepared by the Office of Environmental Health Hazard Assessment, is an attachment with the copy
of this-lettcr served to the: alleged Violator identified below.

Alleged Violator. The narne of the company co’
65 (hereinafter “the Violator”) is:

ve commenced and are diligently prosecuting.an,

by this notice that violated Proposition

First Fitness International, Inc.

Consumer Products and Listed Chemicals. T!

ducts that are the subject of this notice
and the chemicals in those products-identified as exceed

lowable levels are:
FirstFitness RejuvacCet with Glucosa:

First¥itness Renu Ultimate Colon. Cl
First¥Fitness Slim ‘N Up! Xtreme -Lead

» Exhibit AaN 4 ° oN
“-~,

on"

Notice of Violations of California Health & Safety Code §25249.5 et seq.
August 5, 2011 Tot
‘Page 2

: FirstFitness Vitat Green Plus -Lead? :

& First¥itnéss Suddenly Slim Body FX'Tropical Créme Weight Control Beverage
; Mix -Lead. Ae z

§ On February 27, 1987, the State of California: officially listed lead as.a chemical known to
cause developmental toxicity, and male and female reproductive toxicity. On October T, 1992; the
State of California officially listed lead and lead compourids as chemicals known to cause cancer,

It should be noted that ERC. may continue to investigate other products that. may reveal
finther violations and result in subsequent notices of violations. .

Route of Exposure. The consumer exposures that are the subject of this notice result from
the purchase, acquisition, handling and recommended use of these products. Cansequently; the .
primary route of exposure to these chemicals has been and continues to be through ingestion, but
may have also occurred and may continue to occur through inhalation and/or dermal contact.

\ Approximate Time Period of Violations, Ongoing violations have occurred every day

since at:feast August 5, 2008; as well-as every day since the products were introduced into the
‘California imarketplace, and will.continue every-day until clear and reasonable warnings are provided
to product purchasers and users or-until these known toxic¢'chemiéals are éither removed from or
reduced to allowable levels in the products. Proposition 65 requires that a clear and reasonable
Warning be provided. prior to exposure to the identified chemicals... ‘The method of warning should be
-Awarning that appears on the product label. The Violator violated Proposition 65 because it failed to

provide persons handling and/or using these products with appropriate warnings that they aré being -
exposed to these chemicals.

Consistent with the public interest goals of ‘Proposition 65 and:a desire to have these ongoing
violations of California law quickly rectified, ERC is interested in seeking a constructive resolution
of this matter that includes an enforceable written agreement by the Violator to: (1) reformulate the
‘identified products so as to eliminate further exposures to the identified chemicals, or provide
appropriate wamings on the labels of these products; and (2) pay an appropriate civil penalty. Such a
resolution will prevent further unwarned consumer exposures to-the identified chemicals, as well as
an expensive and time consuming litigation.

: ERC has retained me as legal counsel in connection with this matter. Please direct all
communications regarding this Notice of Violations to, my attention at the law office address
and telephone number indicated on the letterhead.

Sincerely, ”

Michael Freund, Esq,mn

o™,

Notice of Violations of California Health & Safety Code §25249.5 et seq.

* August 5, 2011
Page 3

Attachments
Certificate of Merit
Certificate of Service .
OEHHA Summary (to First Fitness International, Inc. and its Registered Agent-for
Service of Process only)

Additional Supporting Information for Certificate of Merit (to AG only)o™ cm
“_~,

Notice of Violations of California Health & Safety Code §25249.5 o¢ seq.
August 5, 2011 : :

Page 4

CERTIFICATE OF MERIT
ALE OF MERIT

Re; Environmental Research Center’s Notice of Proposition.65 Violations by First
Fitness International, Inc. :

I, Michael Freund, declare:

1, This Certificate of Merit accompanies the attached 60-day notice in which it is alleged
the parties identified in the notice violated California Health & Safety Code Section 25249,6 ‘by
failing to provide clear and reasonable warnings,

2. Tam an attomey for the noticing Party,

3. [have consulted with one or More persons with relevant and appropriate experience or
expertise who have reviewed facts, studies, or other data regarding the exposure to the‘listed
chemicals that are the ‘subject of the notice. :

4. Based on the information obtained through those consultants, and on other: information
in my possession, I’believe there is a reasonable and meéritotious case for the ‘private action. I
understand that “reasonable and meritorious case for the private action” means that the
information provides a credible basis that all elements of the plaintiff's case can be established
and that the information did not Prove that the.alleged Violator will be able to establish any of
the affirmative defenses set forth inthe Statute,

5. Along with the copy of this Certificate of Merit served on the Aitomey General iis
attached additional factual inforrnation sufficient to establish the basis for this certificate,
including the information identified in California Health & Safety Code §25249.7(h)(2), ie., (1)
the identity of the persons consulted with and relied on by the certifier, and (2) the facts, studies,
or other data- reviewed by those persons,

Dated: August 5, 2011 .
Michael FreundoN oo

o_O o a.

Notice of Violations of California Health & Safety Code §25249.5 et seg.
August 5, 2011 ue : ij
Page 5

RTIFICATE.OF- SERVICE

J, the undersigned, declare under penalty of-perjury under the laws of the State of California that
the following is true and correct: . .

Lam a citizen ‘of the United States, over the age of 18 years of age, and am not a party fo the
within entitled action. My business address is 306 Joy Street, Fort Oglethorpe, Georgia 30742

On August S, 201] I served the following documents: NOTICE OF VIOLATIONS OF
CALIFORNIA HEALTH & SAFETY CODE §25249.5 ET SEQ; CERTIFICATE OF MERIT;
“THE: SARE DRINKING WATER AND TOXIC ENFORCEMENT ACT. OF . 1986
(PROPOSITION 65); A SUMMARY” on the following parties by placing a trie and correct copy
thereof in a sealed envelope, addréssed to the party, listed-below and depositingit in a US Postdl:Service
Office for delivery by Certified Mail: . ” °

Current CEO orPresitent 230 Nigel P. Branson .
First Fitness International, Inc. : . First Fitness International, inc.’s
* 1430 Bradley Lane, Suite 196 (Registered Agent for Service of Process)
Carrollton, TX 75007 -- 1430 Bradley Lane, Suite 196
» Carroliton, TX 75007

Of August. 5, 2011 I served the following documents: NOTICE OF VIOLATION, -
CALIFORNIA HEALTH & SAFETY CODE §25249.5 ET SEQ.;, CERTIFICATE OF MERIT;
ADDITIONAL SUPPORTING INFORMATION (FOR CERTIFICATE OF MERIT - AS
REQUIRED BY CALIFORNIA HEALTH. & SAFETY CODE §25249.7(d)(1)_ oni.the following
parties by placing a true ‘and cotrect copy. thereof in a sealed:envelope, addressed to the party Jisted below
and depositing it in a US Postal Service Offfice for delivery by ‘Certified Mail: .

Office of the California Attorney General iy

Prop 65 Enforcement Reporting ‘ 2
1515 Clay Street, Suite 2000 far 1
Post Office Box 70550 Qos

Oakland, €A.94612-0550

On August “5, 2011 I -served the following: documents: NOTICE OF VIOLATION, -
CALIFORNIA HEALTH & SAFETY ‘CODE §25249.5.ET SEQ; CERTIF! ICATE OF MERIT on
" each of the parties on the Service List attached hereto by placing a true and correct copy thereof ina
sealed envelope, addressed to each of the parties on the Service List attached ‘hereto, and depositing it -
with.the U.S, Postal Service for delivery by Priority Mail. .

Executed on: August 5; 2011 in Fort Oilethorpe, Georgia.

ib

€liris HeptinstallNotice of Violations of California Health & Safety Code §25249

~

a“

August 5; 2011

Page 6

District Aitomey, Alameda County
1225 Fatlon Street, Room 900
Oakland, CA 94612

District Auomey, Alpine County
P.O, Box 248
Markleevitte, CA 96120

District Attorney, Amador County:
708 Court Street, #202
Jackson, CA 95642.

District Attomey, Butte County
25 County Center Drive
Orovilte, CA'95965

District Attorney, Calaveras County
‘891 Mountain Ranch Rood
San Andivas, CA 95249

Disicict Attomey, Colusa County
547 Market Street
Colusa, CA 95932

District Atomey, Contra Costa County’
900 Ward Sircel
‘Martinez, CA 94553

District Attomey, Del Norte County
450 H Sweet, Ste. 171
Crescent City, CA 95531

District Atorney, El Dosada County
515 Main Street
Placerville, CA 95667

Distwict Attorney; Fresno County
2220 Tulare Street, #2000
Fresno, CA 93721

District Attorney, Gtenn County
Post Offies Bux 430
Willows, CA. 95988.

Disteict Attomey, Humbotde County
825 Sth Stevet
Eureka, CA 95501

District Attomey, Imperial County
939 West Main Street, Ste 102
El Centro, CA 92243

Disirict Attomey, Inyo County
230 W. Line Street
Bishop, CA 93514

District Attomey, Kern County
1215 Truxtun Avenue
Bakersfield, CA 93301

—.

5 ef seq.

District Attorney, Kings County
1400.West Lacey Boulevard
Natiford, CA 93230

District Atoiney, Lake Comty
‘255 N. Forbes Street
Lakeport, CA 95453

District Atiomey, Lassen County
220 South Lassen Suect, Ste. 8
Susanville, CA 96130

District Auemey, Los Angeles County
240 West Temple Street, Rm 345:
Los Angeles, CA90012. 0:

District’Atomey, Madera County
209 West Yosemie. Avenue
Madera, CA 93637

District Attomey, Marin Cvimy
3501 Civie Center. Room 130
‘San Rafael, CA 94903

District Atiorney, Mariposa Coumy.
Post Office Box 730 .
Mariposa, CA 95338

Disitict-Atomey, Mendocine County
Post Oflice Box 1000
Ukiah, CA 95482

DisiriceAtomey, Mereed County
2222 M Street
Merced, CA 95340

District Attomnoy, Modot County
204 S Coust Street, Room 202
Alturas, CA 96101-4020

District Attorney, Mono County
Post Office Box.617
Bridgeport, CA 93317

District Atomey, Monterey County
230 Church Steet, Bldg 2
Salinas, CA 93901

District Attomey, Napa County
931 Parkway Mall
Napa, CA 94559

Disteet ‘Attimey, Nevada County
110 Union Street
Novada City. Ca 95959

District Attorney, Orange County.
401 Civic Center Drive West
Santa Ana, CA.9270tmom

_ Notice of Violations of California Health & Safe
August 5, 2011
Page 7

District Atlomey, Placer County
10810 Justice Center Drive, Ste 240
Roseville, CA 95678

District Attorney, Plumas County
520 'Main Street, Ropm 404
Quincy, CA 95971

District Auomey, Riverside County
4075 Main Street, Ist Floor’
Riverside;CA 92508

District Attomey, Sacramento Coumy
901""G" Street
Sacramento; CA 9581

District Atomey, San Benito County
419 Fourth Street, 2 Floor
Hollister, CA 95023

District Atomey,San Bemardino County
316 N. Mountain View Aveiite
San Bernardino, CA 92415-0004

Distriot Attorney, San Diego County ~
* 330 West Broadway, Room 1300
‘San Diego, CA 92101

District Atiomoy, San Francisco County
‘880 Bryamt Street, Room 325
‘San Francsico, CA 94103

District Attomey, San Joaquin County
Past Office Box 990
Stockton, CA 95201

District Auomey, San Luis Obispo County:
4030 Monterey Street, Room 450
San Luis Obispo, CA 93408

District Atomey. San Mateo County
400 County Ctr, 3" Floor
Redwood City, CA.94063

District-Apomey, Santa Barbara County
1105 Santa Barbara Street
Santa Barbara, CA 93101

District Attomey, Sania Clare County
70 West Hedding Street
San Jose, CA 95110

District Attomey, Sante Cruz Guunty
‘OE Ooean Street, Room 200

Santa Cruz, CA 95060

District Atomey, Shasta County
1523 Court Stecet, Third Floor
Redding. CA 96001-1632

District Attomey, Sieca County

PO Box 457

Downieville, CA 95936

ty Code. §25249.5 et seg:

Disurit Atemey, Siskiyou Comty
Post Olfice Box 986
‘Yreka; CA 96097

District Attomey, Solano County
675.Texns Street, Ste 4500
Pairfield, CA 94533

District Attomiey, Sonoma County
608 Administration Drive, Room 2121
Santa Rosa, CA 95403

District Atomey, Stanislaus County
832 12" Street, Ste300
‘Modesto, CA 95353.

District Attomey, Sutter County
446 Second Street
‘Yuba City, CA 95991

District Ationiey, Tehama County
Post Office Box S19
Red Bluff, CA. 96080

District Attomey, Trinity Coumy
‘Post Otfice Box 310
Weavesvilte, CA 96093

Distriet Attomey, Tulare County
221 S. Mooney Avenue, Racin 224
Visalia, CA 93291

District Attorney, Tuolumne County
423 N. Washington Street
Sonora, CA 95370

District Atiomey, Ventura County
300 South Vietoria Avenue
“Venturi, CA 93009

District Auomey, Yolo County.
301 2* Street :
Woodland, CA 95695

Disuict Attomey, Yuba County
215 Fifth Street
Marysville, CA 95901

Los Angeles City Altomey's Office
City Half East

200.N. Mnin Street, Rm 800

Los Angeles, CA 90012

San Diego City Atomey’s Office
1200 rd Avenue, Ste 1620
‘San Diego, CA 92701

San Franeiseo City Attomey’s OMice
City Hall, Room 234

1-Drive Cariton B Goodlett Place
‘San Francisco, CA 94102

San Jose City Auomey’s Office
200 East Santa Clara Street
San lose, CA 9S113