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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Canadian researchers have warned that many off-the-shelf brewed teas purportedly contain lead in excess of levels considered safe for pregnant and lactating women. Gerry Schwarlfenberg, et al., “The Benefits and Risks of Consuming Brewed Tea: Beware of Toxic Element Contamination,” Journal of Toxicology, December 2013. Using 30 samples of black, green, white, and oolong teas obtained from supermarkets and health food stores, the study’s authors steeped the teas using one tea bag and 250 mL of distilled water for 3-4 minutes and 15-17 minutes. The results evidently showed that “all brewed teas contained lead,” with 73 percent of teas brewed for three minutes and 83 percent of teas brewed for 15 minutes having lead levels ranging from 0.1 µgm/L to 4.39 µgm/L. According to the study, California’s Proposition 65 currently sets an acceptable limit for lead in reproductive health at 0.5 µgm/L per day. In addition, the study notes that…
The Environmental Research Center (ERC) has reportedly filed a lawsuit under Proposition 65 (Prop. 65) against a company that allegedly sells “meal replacement” shakes and “hunger blocker” bars containing lead, a chemical known to California as a reproductive toxicant and cause of cancer. ERC v. Ideal Shape LLC, No. __ (Cal. Super. Ct., Alameda Cty.). Under Prop. 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, private litigants such as ERC may bring enforcement actions after notifying an alleged violator that it has failed to provide warnings with products containing listed chemicals. ERC sent such a letter to Ideal Shape on May 17, 2013, alleging Prop. 65 violations every day since at least May 17, 2010. See Courthouse News Service, November 25, 2013.
A California state court has denied the defendant’s request that it stay a case alleging that the company failed to warn consumers of the presence of lead in its snack bars in contravention of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Envtl. Research Ctr., Inc. v. Clif Bar & Co., No. 13-532935 (Cal. Super. Ct., San Francisco Cty., minutes entered October 16, 2013). Additional details about the suit appear in Issue 492 of this Update. Clif Bar & Co. sought the stay pending the outcome of an appeal from an August 2013 determination that Dole Food Co., Gerber Products Co. and other food makers were not required to warn consumers about lead occurring naturally in their products at levels lower than the state threshold. According to the company, it would waste time and money to proceed in a case that has already cost millions to…
A federal court in California has denied a motion to dismiss in a contract dispute between the supplier of molasses allegedly contaminated with lead and the company that used the ingredient to make licorice subject to a nationwide recall. Am. Licorice Co. v. Total Sweeteners, Inc., No. 13-1929 (N.D. Cal., order entered August 13, 2013). Relying on a sales contract it had prepared, the molasses supplier contended that the plaintiff had failed to comply with its notice provisions and therefore was precluded from seeking relief for its alleged breach. Relying on a purchase order with different terms it had prepared and issued before the first shipment under the contract, the plaintiff candy maker argued that the shipments were subject to its terms. The court was unwilling to determine as a matter of law whether the purchase order altered the terms and conditions of the contract, finding that “this issue is…
The Environmental Research Center, which frequently files lawsuits to enforce California’s Safe Drinking Water and Toxic Enforcement Act f 986 (Prop. 65), has sued Clif Bar & Co., alleging that it fails to warn consumers that its protein, energy, electrolyte, and snack bars contain lead, a substance known to the state to cause cancer, birth defects and other reproductive harm. Envtl. Research Ctr. v. Clif Bar & Co., No. 13 32935 (Cal. Super. Ct., San Francisco Cty., filed July 18, 2013). The plaintiff seeks injunctive relief and civil penalties of $2,500 per day for each violation of Prop. 65.
A California court has tentatively determined, following a 10-day bench trial, that the levels of lead in canned or packaged fruit, vegetable and grape drink products, or baby foods, are below the regulatory “safe harbor” exposure level under Proposition 65 (Prop. 65) and therefore that the companies which make them are not required to provide Prop. 65 warnings to consumers. Envtl. Law Found. v. Beech-Nut Corp., No. RG11 597384 (Cal. Super. Ct., Alameda Cty., tentative decision entered July 15, 2013). Because few Prop. 65 cases go to trial, the court was faced with a number of questions of first impression, primary among them application of the “naturally occurring” defense. The parties did not dispute the presence of lead in the products or that it has been identified as a known carcinogen and reproductive toxin under Prop. 65. Beech-Nut Corp., the original defendant, was joined at trial by a number of other…
California’s attorney general (AG) has filed a suit against a number of candy manufacturers and grocery retailers, alleging that they have violated Proposition 65 (Prop. 65) by failing to label “ginger candies and other food products containing ginger” and/or “plum candies and other products containing plums,” which the AG claims contain lead, a substance known to the state “to cause cancer, birth defects, and other reproductive harm.” People v. Dakota Bros., No. __ (Cal. Super. Ct., San Francisco Cty., filed April 30, 2013). Under Prop. 65, “businesses must provide a ‘clear and reasonable warning’ before exposing individuals to lead,” according to the complaint, and the defendants have allegedly not provided such warnings. The AG seeks civil penalties, not to exceed $2,500 per day for each violation, injunctive relief, attorney’s fees, and costs.
According to a news source, trial begins April 8, 2013, in the Environmental Law Foundation’s Proposition 65 (Prop. 65) lawsuit against 28 food manufacturers and retailers in a California state court, alleging failure to warn the public that their baby and toddler foods and fruit juices contain lead, a chemical known to the state to cause reproductive toxicity or cancer. Envtl. Law Found. v. Beech-Nut Nutrition Corp., No. 11-597384 (Cal. Super. Ct., Alameda Cty., filed Sept. 28, 2011). Details about the case appear in Issue 412 of this Update. The trial will involve the manufacturing defendants and will resolve their affirmative defenses only. Trials over damages issues and claims against the retailers have not apparently been scheduled. Among the defenses that the court will consider are whether (i) Prop. 65, as applied, is preempted under the Food, Drug, and Cosmetic Act and federal nutrition programs; (ii) exposure to the products’ lead levels…
The U.S. Department of Agriculture and the Food and Drug Administration have announced a March 12, 2013, public meeting in College Park, Maryland, to provide information and receive public comments on agenda items and draft U.S. positions for discussion at the 7th Session of the Codex Committee on Contaminants in Foods in Moscow on April 8–12, 2013. Agenda items include (i) proposed draft maximum levels for Deoxynivalenol in cereals and cereal-based products; (ii) proposed draft revisions of maximum levels for lead in selected commodities in the general standard for contaminants and toxins in food and feed; (iii) a proposed draft code of practice for preventing and reducing Ochratoxin A contamination in cocoa; and (iv) a discussion paper on the development of a code of practice for preventing and reducing arsenic contamination in rice. See Federal Register, February 27, 2013.
