September 30, 2013
Authored by: Brandon Neuschafer
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 warnings, which resulted in a victory for the defendants. However, the court rejected defendants’ argument that warnings were not required because the lead was naturally occurring. (The court also rejected a federal preemption argument.) The Prop 65 regulations exempt products where chemicals such as lead are present “solely as a result” of naturally occurring chemicals. However, the court found that defendants did not demonstrate that the lead in their products was “solely as a result” of natural conditions because defense experts acknowledged that some of the lead came from other sources. The court refused to read the word “solely” to mean “predominantly.”
So, although the court offered a restrictive reading of the naturally occurring exemption that will impact future Prop 65 determinations, that exemption was not necessary because the lead levels in the affected products were low enough that they posed no significant risk and no observable effect on reproduction.