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A Pennsylvania jury has found that Starr Surplus Lines Insurance must uphold H.J. Heinz Co.'s $25 million policy covering damages related to baby cereal tainted with lead. H.J. Heinz Co. v. Starr Surplus Lines Ins. Co., No. 15-0631 (W.D. Penn., jury verdict entered December 16, 2015). Heinz sought a declaratory judgment that the insurance provider must cover business-interruption costs after China's food-control agency found lead in the company's high-protein dry baby cereal. Starr argued that Heinz had misrepresented the situation when the company applied for the policy because it failed to disclose previous contamination incidents. The jury concluded that although Starr did prove "that Heinz made a misrepresentation of fact(s) in its insurance application which was material," Starr "waived the right to assert a rescission claim" either because it sold the policy with knowledge of the misrepresentation or because it failed to rescind the policy after learning of the misrepresentation.…

The European Food Safety Authority (EFSA) has issued a scientific opinion assessing any potential risks associated with the use of insect protein in food and animal feed. Concluding that chemical and biological risks depend on production method, the type of substrate used, and insect species, the expert panel specifically notes that “the occurrence of prions—abnormal proteins that can cause diseases such as Bovine Spongiform Encephalopathy (BSE) in cattle and Creutzfeldt-Jakob Disease in humans—is expected to be equal or lower if the substrate does not include protein derived from humans (manure) or ruminants.” The report also calls for more data about the possible accumulation of cadmium, arsenic, lead, mercury, and other heavy metals in farm-raised insects. “EFSA concludes that when non-processed insects are fed with currently permitted feed materials, the potential occurrence of microbiological hazards is expected to be similar to that associated with other nonprocessed sources of protein,” states a…

Environmental group As You Sow has filed a 60-day notice of intent to sue the manufacturer of Soylent, a food substitute product, for alleged failure to warn that the powder contains lead and cadmium exceeding levels considered safe under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). The product at issue is Soylent 1.5, which As You Sow alleges contains 12 to 25 times the safe-harbor level of lead and four times the safe-harbor level of cadmium, according to two samples reportedly tested by an independent laboratory. “These heavy metals accumulate in the body over time and, since Soylent is marketed as a meal replacement, users may be chronically exposed to lead and cadmium concentrations that exceed California’s safe harbor level (for reproductive harm),” As You Sow CEO Andrew Behar said in an August 12, 2015, press release. “With stories about Silicon Valley coders sometimes eating three…

In response to a petition for administrative rulemaking filed by the Center for Environmental Health, the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) has announced its intention to update the existing maximum allowable dose level (MADL) for lead. The agency will post a notice for hearing on the petition on October 9, 2015, in Sacramento. In particular, the petition claims that the current MADL for lead—0.5 micrograms per day—“is too high to protect Californians from the well-established reproductive effects of lead that do and can occur at levels below 500 micrograms per day.” Faulting the courts for allowing defendants in enforcement actions “to average lead exposures over time,” CEH also alleges that the existing regulation “has been interpreted to allow lead exposures of up to 7 micrograms a day.” Based on the evidence provided in its petition, the organization has asked OEHHA to repeal or amend…

Consumer Advocacy Group, Inc. has filed a lawsuit against T.J. Maxx, its parent company and its food supplier alleging that they failed to provide a warning of lead content in a raspberry balsamic vinegar product in accordance with the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65), the California law that requires warnings on the labels of products that contain substances known to cause cancer or reproductive harm. Consumer Advocacy Grp. Inc. v. Olivier Napa Valley Inc., No. BC580857 (Cal. Super. Ct., Los Angeles Cty., filed May 4, 2015). The complaint asserts that because all “[v]inegar contains lead,” the defendants should have known that the product was subject to Prop. 65 labeling requirements. Consumer Advocacy Group argues that it investigated the product and gave notice of the alleged violation to each defendant, the state attorney general, county district attorneys and city attorneys but none of the authorities…

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 U.S. Department of Agriculture’s Office of the Under Secretary for Food Safety, Food and Drug Administration, and Department of Health and Human Services have announced a February 23, 2015, public meeting in College Park, Maryland, to discuss draft positions for consideration at the 9th Session of the Codex Committee on Contaminants in Food in New Delhi, India on March 16-20. The lengthy agenda for the February meeting includes (i) maximum levels for lead in ready-to-drink fruit juices and nectars as well as in canned fruits and vegetables; (ii) proposed draft maximum levels for inorganic arsenic in husked rice; (iii) a proposed draft Code of Practice for the Prevention and Reduction of Arsenic Contamination in Rice; (iv) proposed draft maximum levels for cadmium in chocolate and cocoa-derived products; (v) a discussion paper about the feasibility of developing a Code of Practice for mycotoxins in spices; and (vi) a priority list…

A California federal court has rejected in part and granted in part Total Sweeteners Inc.’s motion for summary judgment in a case alleging that the molasses supplier sold American Licorice Co. shipments tainted with lead that American Licorice then used to create Red Vines black licorice candy, resulting in a costly recall. Am. Licorice Co. v. Total Sweeteners Inc., No. 13-1929 (N.D. Cal., order entered October 22, 2014). Additional details about the case appear in Issue 494 of this Update. American Licorice argued that, under the sales contract, Total Sweeteners was obliged to provide molasses that complied with state and federal regulations; Total Sweeteners asserted that American Licorice knew that molasses has some naturally occurring lead and should have tested for it upon receipt. The court focused on the contract, agreeing with Total Sweeteners that the sales contract between the parties, and not a subsequent purchase order with terms favorable…

Representatives of more than 170 countries, the European Union and governmental and non-governmental organizations convened in Geneva, Switzerland, on July 14-18, 2014, for the annual meeting of the Codex Alimentarius Commission. Delegates reportedly adopted a recommendation that no more than 0.01 mg/kg of lead be allowed in infant formula and that raw materials be sourced from geographical areas where lead is less prevalent, citing the particular vulnerability of infants and young children to developmental health effects from lead exposure. Codex also set a maximum allowable level for arsenic in rice of 0.2 mg/kg because long-term exposure to the naturally occurring chemical has been linked to the development of cancer, heart disease and diabetes. Other decisions made during the annual meeting related to restricting the use of eight veterinary drugs (chloramphenicol, malachite green, carbadox, furazolidone, nitrofural, chlorpromazine, stilbenes and olaquinadox) in food-producing animals to prevent any residual quantities in meat, milk,…

The Consumer Advocacy Group, Inc. has filed a series of Proposition 65 (Prop. 65) 60-day notices since December 2013 against supermarkets and rice companies in California, Texas and Taiwan, alleging violations of the law for failure to warn consumers that their rice products contain arsenic (inorganic arsenic compounds), known to the state to “cause both cancer and reproductive toxicity.” The most recent notice was filed February 17, 2014. Under Prop. 65, private citizen enforcers must notify the alleged violator and local prosecuting authorities of their intent to sue so that the alleged violator has the opportunity to correct any alleged violation and local district attorneys have the opportunity to bring government action. The first in this series of notices, brought against Far West Rice, Inc., also alleged that the company’s rice contained lead.   Issue 514

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