Proposition 65 Warnings Not Required for Low Levels of Lead in Food
SAN FRANCISCO (March 18, 2015) – California’s First District Court of Appeal issued a unanimous and potentially far-reaching and precedent-setting opinion March 17, siding with businesses in their defeat of a major lawsuit that sought to require cancer and birth defect warning labels for 100 percent fruit juice, packaged fruit, and baby foods that contain trace levels lead. The lawsuit was brought by the Environmental Law Foundation (ELF) in 2011 under California’s stringent Proposition 65 law and resulted in a trial level victory for the defense in 2013.
“The decision has major implications for Prop. 65 and beyond, both with respect to food and potentially more broadly,” said Morrison & Foerster partner Robert Falk, who, with Michèle Corash, helped captain a team, including trial litigators Linda Shostak and James Schurz and former appellate Justice Miriam Vogel, that represented 16 food manufacturers in the case, including iconic brands Beech-Nut, Del Monte, Dole, Gerber, Hain-Celestial, J.M. Smucker, Seneca, and Welch's. “The Court of Appeal’s decision supports that sound science and real world data on a product’s content and use characteristics should be the basis for requiring warning labels. We are pleased that the Court of Appeal has signaled that enforcement should not fall to the extremes and require the use of unrealistic default assumptions.”
ELF’s appeal, filed in 2013, challenged Alameda County Superior Court complex litigation Judge Steven Brick’s acceptance of the exposure assessment proffered by the fruit companies’ expert during trial. The expert presented data on the average amount of lead that would be ingested from a product based on the number of occasions on which it is typically consumed over a two week period. Her testimony was supported by additional defense expert testimony accepted by Judge Brick concerning the time period of susceptibility relevant to reproductive effects from lead exposure during pregnancy.
With amicus support from the California Attorney General’s office, the Environmental Law Foundation claimed that, as a matter of law and regardless of real world data, Proposition 65 required an assumption that an average person eats the same type of the fruit product each and every day and the analysis of the level of exposure should further be based on the single highest test result on the level of lead in the food. ELF further argued on appeal that the data set on the amount of lead in the products at issue, which was relied on for exposure assessments conducted by both the defense and its own expert, was insufficient.
The appellate court disagreed with ELF on both its view of Proposition 65’s requirements and on the sufficiency of the evidence. It specifically found that the lead testing data on which the defense’s exposure assessment expert relied was sufficiently representative to meet the requirements of Proposition 65 and the California Evidence Code and related case law and that no evidence existed to the contrary. The Court of Appeal also found that Proposition 65 and sound science allows for averaging multiple test results to characterize the level of lead in a food product and that, relative to calculating exposures to lead from a food, the amount of it consumed may be measured over a two to eight week period of time.
“The implications of the Court of Appeal’s decision go beyond the fruit, juice, and baby food products in this case. They may also apply to claims concerning trace levels of arsenic, cadmium and other chemicals, in addition to lead,” said Falk. “In addition to Proposition 65 claims, the Court’s decision also may help to obtain dismissals of other types of lawsuits, including class actions predicated on allegations of failure to disclose the presence of scientifically immaterial trace amounts of lead or other chemicals in a product,” he added.
In a federal Multi-District Litigation proceeding in the District of Massachusetts, in late 2012, a team led by Morrison & Foerster litigation partner James Schurz had previously obtained a dismissal from class action claims brought against several of the companies against which ELF had initially threatened its Proposition 65 claims.