October 9, 2012
Violations served to restaurants for flamed-cooked ground beef products
By Bruno W. Katz
Wilson Elser Moskowitz Edelman & Dicker
The California Restaurant Association (CRA) has recently learned of violation notices being served to restaurants alleging a violation of the California Health and Safety Code under Prop. 65. The 60-day notices of violation are being sent by Whitney R. Leeman, who claims to hold a doctor of philosophy degree in environmental engineering.
Notices have been received by at least four restaurant companies in San Diego and Sacramento counties in the 30 days on the basis of alleged exposure to potentially toxic chemicals found when flame-cooked ground beef products are ingested. The notice alleges defects that include failure by the restaurants to post the required Prop. 65 warnings, and the failure to recall the ground beef products sold or taking reasonable measures to ensure the requisite health hazard warnings have been provided.
The notices invite restaurants to contact Leeman’s counsel, Josh Voorhees of the Chanler Group. Leeman and the Chanler Group have prosecuted Prop. 65 cases for many years and are very saavy and experienced with similar cases. The notices indicate Leeman and the Chanler Group will file a citizen enforcement lawsuit against the restaurant unless the restaurant enters into a binding written agreement which would include: recall of the products or undertaking best efforts to stop the conduct, providing warnings for the products sold and payment of an appropriate civil penalty. It also alerts the restaurant that a settlement with Leeman and her counsel does not protect the restaurant from any action that California state or local prosecutors may still decide to take.
The CRA believes that this is a concerted effort to target restaurants that sell flame-cooked ground beef products. Similar litigation was filed against Burger King in the last couple of years.
CRA Legal Center attorneys Bruno Katz and Ralph Robinson of Wilson, Elser, Moskowitz, Edelman and Dicker advise member companies to look out for these violations. If one is received, do not contact Leeman or her counsel. Instead, immediately notify the CRA through its Legal Center. The notices can mean hefty penalties and fines and great expense to a restaurant who attempts to defend it on its own. It is important that legal counsel be consulted before taking action to minimize potential liability and cost.
For assistance, contact the CRA Helpline at 800.765.4842, Ext. 2743. CRA members qualify for 15 minutes of free legal advice each month through the CRA Legal Center.