Bryan Cave Digest


Main Content

California Court Rules on Prop 65 Warnings for Certain Food Products Containing Lead

September 30, 2013


Those doing business in California are certainly aware of Prop 65 (formally known as the Safe Drinking Water and Toxic Enforcement Act of 1986), which requires warning labels on products containing chemicals known to cause cancer and/or reproductive toxicity.  Nearly thirty years of rulemaking and litigation over Prop 65 has created a many nuances in the law, such as the one recently addressed by a California state trial court in Environmental Law Foundation v. Beech-Nut Corp. et al., Cal. Super Ct., No. RG11 597384 (July 15, 2013).

The question presented in this case is whether food products that contain low levels of lead, which lead was asserted by defendants as naturally occurring, required warnings under Prop 65.  Implicated foods included packaged fruit products, fruit drinks, and baby foods.  The court determined that the low levels of lead identified in the litigation did not result in exposures that required Prop 65

Safeway Sued Over “100 Percent Natural” Waffles Containing Preservatives

September 27, 2013


A California resident filed a class action lawsuit on September 18, 2013, against Safeway Inc., alleging that waffles advertised as “100 percent natural” contained a chemical preservative, sodium acid pyrophosphate. Affected products include “Open Nature 100 percent natural Multi-Grain Waffles” and “Open Nature 100 percent natural Homestyle Waffles.”  The class action suit, brought in the U.S. District Court for the Northern District of California (often referred to as the “Food Court”), asserts claims of common law fraud, negligent misrepresentation, breach of contract, and quasi contract/unjust enrichment. On behalf of a a subset class of California residents, the complaint asserts claims under the California False Advertising Law, the California Consumers Legal Remedies Act, the California Unfair Competition Law, and common law theories of breach of express warranty. Plaintiffs are seeking injunctive relief and monetary damages.

Sodium acid pyrophosphate is a preservative used in food products, and is generally recognized as safe