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January 25, 2008

Comments

RegCheck

This is a fascinating post. If I understand it correctly, your argument is that CKE defended badly by obtaining a single sample that showed naphthalene at levels below the State's established threshold of 5.8 ug/day. A sample size of 1 is not very powerful, to be sure.

The linked document says that the plaintiffs did the same thing: "In 2006, respondents obtained a sample of CKE french fries and sent the sample to a laboratory for testing. The tests revealed the presence of naphthalene." Moreover, in their 60-day notice to CKE (and others whose french fries they did not test), they implied generalizability: "Copies were served on the state Attorney General, the district attorney for each county in California and city attorneys in six major cities."

The rest of the document appears to be a factual dispute about the 1 plaintiffs' sample (alleged to contain a dose of 6.37 ug/day) and CKE's 1 sample (alleged to contain < 0.01 ppm). But the key seems to be that the trial court ruled that 1 sample was insufficient for CKE and sufficient for the plaintiffs.

Is this an accurate summary?

Bruce Nye

Richard,

Your summary is more or less accurate. Remember that this all happened in the context of California's Anti-SLAPP statute, which requires the plaintiff (in this case CKE) to prove there was a probability it would prevail. It sought a declaration of the general principal that it had not exposed persons to the listed carcinogen naptholene. So, as a matter of logic, it had to demonstrate that none of the food it served contained naptholene. The court held it couldn't prove that NONE of the food it served contained naptholene by providing one sample

Ms. Moore, on the other hand, had to show that SOME food served by CKE resulted in exposing persons to naptholene. This, again as a matter of logic, it could prove by submitting one sample.

Could CKE only win this case by providing samples of all its food? Surely not. Again, as a matter of logic, a broad-based sampling of food samples from different restaurants, all which were below the No Significan Risk Level for napthalene, would certainly create a strong inference that its food was compliant across the board. One sample from one restaurant, however, was not sufficient to create this inference.

Richard Belzer

Bruce,

Thank you for your prompt and informative reply. I gather that CKE lost because the bounty hunter needed just one sample to make a plausible case of violation, but to win a declaratory judgment CKE needed substantial empirical evidence that the bounty hunter's single sample was unrepresentative.

The "anti-SLAPP" law you've linked to seems not to have much guidance for this evidentiary burden. CKE would need to show "that there is a probability that the plaintiff will prevail on the claim," but no mention is made of what magnitude that probability must be in order to prevail. I gather than there is case law that provides guidance through this ambiguity.

What caught my eye in the first instance was the claimed co-existence of naphthalene in French fries through some artifact of cooking. Naphthalene is a petroleum and/or coal distillate; you would not expect to find it in vegetable oil. Indeed, why would anyone go looking for it there?

Two possibilities came to mind. First, the bounty hunter may have taken a sample of French fries to a lab with the direction to find everything that can be found. Whatever pops up then would become a potential Prop 65 violation.

Second, the bounty hunter might have known that there are naphthalene-like compounds that are naturally found in potatoes. Armed with that knowledge, the bounty hunter could cleverly hold CKE liable for the fact that its French fries are made from ... potatoes.

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