Prop. 65 Lead Testing Can Use Average Exposures, Appeals Court Confirms
A California appeals court has affirmed a lower court’s ruling against plaintiff Environmental Law Foundation (ELF), which alleged that the products of Beech-Nut Nutrition Corp. and other food manufacturers, distributors and retailers contained sufficient amounts of lead to trigger warnings required under the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Envtl. Law Found. v. Beech-Nut Nutrition Corp., No. A139821 (Cal. Ct. App., 1st App. D., Div. 1, order entered March 17, 2015). ELF argued that several products, including foods predominantly intended for babies and toddlers, contained more than the state’s safe-harbor level of 0.5 micrograms per day.
On appeal, ELF challenged the trial court’s decision to allow Beech-Nut’s experts to average lead test results over multiple lots rather than evaluating each individually because the single highest result may have met the minimum threshold for Prop. 65 labeling. The court dismissed the challenge, finding that averaging the lots is not similar to “the deliberate mixing of adulterated food with good food,” which has been rejected by the U.S. Food and Drug Administration.
With the support of an amicus brief from California Attorney General Kamala Harris, ELF also argued that averaging 14 days’ worth of typical product intake violates Prop. 65 regulations, which are based on single-day exposures. Repeating the finding of an earlier decision, the court noted, “Proposition 65 ‘envisions a case-by-case approach which takes into account the totality of the quantitative risk assessment evidence presented.’” In the case of lead, “[s]ubstantial evidence established that the products here are eaten no more frequently than four times per month. Experts on both sides agreed that there is at least an eight-week ‘window of susceptibility’ to lead. In other words, eight weeks is the shortest period during which an exposure to lead at levels detected in the products would be expected to have an adverse reproductive effect.” Thus, test results reflecting only single-day exposures are not necessarily required by Prop. 65, the court said, so ELF’s challenge to Beech-Nut’s evidence was dismissed.
Issue 559
