PROPOSITION 65 LAWSUIT FILED CLAIMING LEAD IN FRUIT

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On September 28, 2011 the Environmental Law Foundation ("ELF") filed a lawsuit alleging lead is present in a variety of children’s and baby foods, including products made of or with carrots, peaches, pears, or sweet potatoes; and foods and beverages for children and adults including packaged peaches, pears, fruit cocktail, and grape juice. The suit claims that each of the products contains enough lead in a single serving to require a consumer warning under California’s Safe Drinking Water and Toxic Enforcement Act (aka "Proposition 65" or "Prop 65").

The suit has named the following companies as defendants thus far:

Beech-Nut Nutrition Corp; Core-Mark Holding Company, Inc.; Del Monte Foods; Dole Packaged Frozen Foods, Inc.; Gerber Products Company; Golden Star Trading, Inc.; The Hain Celestial Group, Inc.; J.M. Smucker Company; Kedem Foods Products Int’l; Langer Juice Company, Inc.; Seneca Foods Corp.; Lucerne Foods, Inc.; Safeway, Inc.; Target Corp.; Raley’s; Save Mart Supermarkets; Smart & Final, Inc.; Stater Bros. Markets; The Kroger Co.; Topco Associates, LLC; Trader Joe’s Company; Tree Top, Inc.; Truitt Bros, Inc.; Walgreen Co.; Wal-Mart Stores, Inc.; CVS Pharmacy, Inc.; Welch’s Foods, Inc., A Cooperative and Whole Foods, Inc.

ELF sent formal notices of the "violations" in June 2010 to the Attorney General and industry members. Companies were to comply with Prop 65 by either reducing or eliminating the lead in the products or placing a warning on the food packages. ELF claims that "after over a year of discussion and meeting with the Attorney General and representatives and suppliers and retailers, ELF feels the time has come to enforce the law and protect consumers."

The Governor is required under Prop 65 to publish a list of chemicals "known to cause cancer or reproductive harm." Lead was among the first chemicals listed in 1987 as both a carcinogen and reproductive toxicant.

As passed, Prop 65 requires a warning for an exposure to a reproductive toxicant if the exposure is one-one thousandth of a level that causes no observable adverse effect (NOEL), often referred to as the "1000 fold safety factor." This contrasts with the "no significant risk" standard for carcinogens. The California League of Food Processors has argued that the 1000 fold safety factor is unreasonable and unfairly triggers Prop 65 requirements on chemicals, such as lead, that are at a safe level.

The defense will likely argue that the lead found in these fruit products is naturally occurring and will point to the fact that the U.S. Food and Drug Administration has specifically determined that the minute amounts of naturally occurring minerals, including lead, in these fruit products are safe.

While foods and beverages have been under siege by Prop 65 for the past several years, never before has a lawsuit of this magnitude been filed. The stakes have never been higher for California agriculture and food processing.

The lawsuit was filed in Alameda County Superior Court. The complaint can be accessed on the ELF website at www.envirolaw.org. It seeks required warning labels and penalties of up to $25,000 per violation per day. 

Article written by Trudi Hughes, Government Affairs Director

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