The class action suit, launched against the Pepsi Twist drink, marks the first time one of America's 'big three' soft drinks firms has been drawn into a legal battle over recent concern about benzene in drinks.
"Pepsi Twist has been falsely promoted as a safe consumer product, when in fact, it contains the ingredients ascorbic acid and potassium benzoate, which can and do produce the carcinogenic chemical benzene when exposed to heat and light," the lawsuit, filed by lawyers Howard Hewell and Howard Rubinstein, alleges.
It is understood that third party testing for benzene in Pepsi Twist, which included exposing the drink to heat and light, has taken place in recent weeks.
PepsiCo was unable to comment on the lawsuit before BeverageDaily's publishing deadline.
The action means benzene lawsuits have now been filed against soft drinks firms in five different US states, and will come as a blow to PepsiCo, emerging only two days after it and other soft drinks firms agreed to pull more high-calorie beverages out of US schools.
Renewed concerns about benzene's presence in soft drinks have grown since a Food and Drug Administration (FDA) scientist revealed to BeverageDaily.com in February that recent tests had again found some soft drinks with benzene above the maximum level considered safe in US tap water.
The FDA has stressed that benzene levels it has found so far did not pose an immediate health risk to consumers, but that some reformulation would be required.
The suspected source of benzene is two common ingredients - sodium benzoate and ascorbic acid (vitamin C) - in the drinks, although potassium benzoate has been shown to cause the same problem.
The FDA and soft drinks industry have known this for 15 years, as well as that exposing a drink containing these ingredients to heat could significantly raise benzene levels.
If the lawsuit filed against Pepsi was to end up in court, then more details on what took place 15 years ago may emerge.
An internal FDA memo dated December 1990 says soft drinks firms approached the agency concerned about benzene traces in their drinks. Industry and FDA testing ensued.
No public announcement was ever made, and an FDA chemist there at the time told BeverageDaily.com the agency privately agreed for the industry to "reformulate and get the word out".
Both he and the American Beverage Association admitted earlier this year, however, that some companies, and particularly those formed since the problem arose, may have been left outside of the loop.
More than 1,500 soft drinks containing a combination of sodium benzoate and ascorbic acid or citric acid have been launched across Europe, North America and Latin America in the last four years.
Food safety authorities around the world began testing drinks for benzene in light of the FDA's renewed investigation.
But, a new twist to the saga has emerged in the last couple of weeks, with the FDA publicly questioning the accuracy of its own tests for benzene in drinks.
Work by independent scientist James Neal-Kababick exposed a problem.
Kababick, who claimed to have devised a better test for benzene, told BeverageDaily.com the FDA's procedure exposed drinks to heat, which could cause more benzene to form in the drink and so skew results in so-called off-the-shelf testing.