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Prop 65 in the spotlight

California judge rejects demand for health warnings on baby foods, 100 percent fruit juices and packaged fruit and vegetable products

By Stephen DANIELLS , 05-Aug-2013
Last updated the 05-Aug-2013 at 14:33 GMT

California judge rejects demand for health warnings on baby foods, 100 percent fruit juices and packaged fruit and vegetable products

A California Superior Court Judge has rejected demands from an environmental advocacy group for health warnings on packaged fruit and vegetable products, 100% fruit juices, and baby foods.

The decision followed a five-week bench trial involved a number of iconic food brands such as Del Monte, Dole, Gerber, Hain-Celestial, J.M. Smucker, Seneca Foods, and Welch’s.

The Oakland-based Environmental Law Foundation (ELF) alleged the fruit and vegetable products at issue should carry health warnings because they contain of trace levels of lead, despite the FDA finding them unnecessary and inadvisable.

Michèle Corash, a partner at Morrison & Foerster – the law firm which defended the companies, said: “For years, advocacy groups have been using Proposition 65 to force settlements from companies that did not have the resources necessary to defend litigation, even where the claims against them have no merit.

“This is the right result for Californians – and it is the right result for all of those who enjoy these nutritious fruit and vegetable products.”

Victory!

California’s controversial Prop 65 requires manufacturers selling products in California to give warnings if their products expose consumers to any detectable amount of hundreds of chemicals believed to cause cancer or reproductive toxicity.

The result for the Morrison & Foerster team for its clients is a rare victory, with many Prop 65 cases not making it to court. In 2012 alone there were 397 settlements totaling more than $20 million.

Morrison & Foerster successfully defeated the “failure to warn” claims by ELF by proving that the amount of lead consumers are exposed to for each of the products at issue was less than even the tiny (0.05 micrograms per day) amount requiring Prop 65 cancer and reproductive harm warnings.

According to the firm, the judge’s decision was largely based on testimony Morrison & Foerster’s retained experts provided about lead toxicology and real world patterns of consumption of the types of food products at issue.

The companies “have shown that each of their products is below the regulatory ‘safe harbor’ exposure level, and for that reason, no warnings are required,” concluded Judge Brick.

Reform

Prop 65 has been in the spotlight in recent months as California Gov. Edmund G. Brown Jr. proposed reforms "to strengthen and restore the intent of Proposition 65”, which he described as a “good law that's helped many people, but it's being abused by unscrupulous lawyers".

The governor’s proposals for reform include capping attorney's fees in Prop 65 cases, requiring stronger demonstration by plaintiffs that they have information to support claims before litigation begins, requiring greater disclosure of plaintiff's information, setting limits on the amount of money in an enforcement case that can go into settlement funds in lieu of penalties, providing the state with the ability to adjust the level at which Proposition 65 warnings are needed for chemicals that cause reproductive harm, and requiring more useful information to the public on what they are being exposed to and how they can protect themselves.

The announcement stated the California Environmental Protection Agency (CalEPA) would work with the state's legislature, as well as stakeholders, to discuss needed reforms.

In addition, Sen. Barbara Boxer recently held a hearing of the Senate Environment and Public Works Committee July 31 to examine the issue of Toxic Substances Control Act reform, and measures proposed by the Chemical Safety Improvement Act (S. 1009.)

The bill, if passed in its jointly sponsored form, could federally pre-empt California’s Prop 65, although it does not apply to food. 

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