A California appeals court has affirmed a lower court’s dismissal of a lawsuit asserting that Sutter Home Winery Inc.’s wine should feature a warning about arsenic content pursuant to the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Charles v. Sutter Home Winery Inc., No. B275295 (Cal. App. Ct., 2nd Dist., entered May 9, 2018). While Sutter Home’s wines feature the “safe harbor” alcohol warning pertaining to cancer and birth-defect risks, the plaintiffs argued that the labels should also reference risks associated with consuming inorganic arsenic. Failing to disclose the inorganic arsenic level, the plaintiffs asserted, amounted to a Prop. 65 violation.

“Plaintiffs contend the safe harbor warning for alcoholic beverages is incomplete because it does not alert consumers to the presence of inorganic arsenic, and by this omission, the warning misleads consumers into believing their exposure is limited to a single listed chemical, alcohol,” the court noted. “But the purpose of Proposition 65 is to warn consumers of the two health risks—cancer and reproductive harm—associated with exposure to a listed chemical, and the alcoholic beverage warning complies with the regulations drafted by [the Office of Environmental Health Hazard Assessment (OEHHA)] to accomplish that objective.”

“OEHHA does not require defendants to provide two separate warnings for alcoholic beverages that contain an additional listed chemical. In the new warnings that will take effect on August 30, 2018, OEHHA requires the disclosure of only one listed chemical per health risk and allows each business to decide whether to list additional chemicals in the warning they choose to provide. Under the current regulatory scheme, the failure to provide a separate arsenic warning is not a violation of the regulations or the initiative itself. Whether an additional warning should be required for inorganic arsenic in wine is a matter for the Legislature or OEHHA to consider.”

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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