Rare Toxics Trial Set to Start Over Lead in Baby Food, Fruit Juice and Canned Fruit

Our firm is honored to partner with California non-profit organization Environmental Law Foundation (ELF) to protect children from lead in their food. On Monday, April 8, 2013, we are heading into the courtroom to take on several large companies such as Del Monte, Dole Foods and Gerber Products for exposing unknowing consumers to potentially dangerous levels of lead. We are proud to champion this cause, and hope that our work on this case can help make food safer for our children.

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Thursday, April 4, 2013

By Fiona Smith Daily Journal Staff Writer

It hardly ever happens – a trial over the state’s unique toxics warning law. The high-stakes case scheduled to open Monday concerns lead in baby food, fruit juice and canned fruit and unlike almost all other cases brought under Proposition 65, it has not settled out of court. The fight revolves around whether major food companies violated the law by failing to notify consumers that some of its products contain the toxin. Under the 1986 voter initiative, companies must warn the public if their products contain unsafe levels of cancer causing or reproductively toxic chemicals. Litigating such claims is technical and expensive, leading most cases to get resolved out of court. But businesses, faced with a growing number of legal threats over lead in food, are fighting this case and may be hoping a victory here could squelch a potentially costly problem. A loss means food companies must either label some products as potentially toxic or spend time and money to find ways to reduce lead levels and avoid a warning. The plaintiff, Oakland nonprofit Environmental Law Foundation, is facing off Monday against companies including Beech-Nut Nutrition Corp., Del Monte Corp., Dole Food Co. and Gerber Products Co.- competitors that have all banded together with one law firm, Morrison & Foerster LLP, to defend the case. The Environmental Law Foundation has brought on Texas-based Baron & Budd P.C.. Environmental Law Foundation v. Beech-Nut Nutrition Corp. RG 11597384 (Alameda Super. Ct., filed Sept. 28, 2011) The foundation claims lead levels in more than 100 of the companies’ products, such as carrot baby food, grape juice and fruit cocktail expose consumers to unsafe levels of lead and that the companies should do more testing and improve food handling to cut down on the toxin. The companies counter that the lead levels are so low that they do not trigger a Prop. 65 warning, and even if they did, the lead is exempted from the law because it is naturally occurring in the environment. They also argue that a warning label on such food products is preempted by the federal Food and Drug Administration’s food safety programs. "[The companies] have adopted the perspective that they know the lead is there, they are not going to do enough to get the lead out…and they are not going to tell consumers about it," said James R. Wheaton, an attorney and head of the Environmental Law Foundation. "It’s lead, for God’s sake, and it’s children." Lead exposure can lead to miscarriages and organ damage in adults and low levels of lead exposure in children can cause brain damage and slowed growth, according to the federal Environmental Protection Agency. Several defendant companies either did not return calls seeking comment or declined to comment on pending litigation. Michele B. Corash, a Morrison & Foerster partner heading up the case, did not return calls seeking comment for the story. The defendants will be spending millions of dollars on the trial and Prop. 65 attorneys will be watching this case closely, said Carol R. Brophy, a longtime Proposition 65 defense attorney with Sedgwick LLP, not involved in the case. "The reason this case is going to trial is this is a product that absolutely cannot tolerate a warning because no one will buy baby food with a Prop. 65 warning on it because it’s babies and that’s why it was chosen," Brophy said. "To try to control the lead levels would completely change the whole agricultural pattern of commerce … and would be unworkable." In court filings, the companies argue that its calculations of lead exposure show the foods do not pose a risk to the public and that they already employ good agricultural and manufacturing processes to avoid lead contamination. "The warning remedy plaintiff seeks…will mislead consumers, conflict with federal goals of encouraging increased fruit and vegetable consumption, and make it impossible for producers to comply with both state and federal requirements," Morrison & Foerster lawyers argue in court papers. "Plaintiff has constructed a bet-you-can’t-do-this maze of aspirational best practices, whose efficacy is untested and whose impact on the industry would be catastrophic," they added. Wheaton counters that other companies are selling similar products that do not contain lead, and the companies could set standards on suppliers to cut lead exposure. Possible sources of lead contamination include past use of lead arsenate pesticide, lead pollution from gasoline exhaust or coal plants, lead contaminated soil or lead leaching from metal processing equipment, he said. "They don’t want to do anything that raises the cost, even by a penny," Wheaton said. "Most of the foods are sourced worldwide – these are just commodities and it’s … a race to the bottom in terms of cost." Since voters approved Proposition 65 in 1986, litigation has mostly centered on products such as jewelry, artifical turf and household faucets rather than food. But that appears to be changing. In the past few years, there have been cases over mercury in tuna and the chemical acrylamide in potato chips and other baked goods. The Environmental Law Foundation case is the first over lead in food, but there could be wave of such cases in the near future. In 2013, the number of notices plaintiffs’ attorneys have sent to companies alleging Proposition 65 violations of lead in food has dramatically increased, according to information compiled by the attorney general’s office. The Environmental Law Foundation sent the first such notice over lead in food in 2010, which led to the current case. Of the more than 50 total notices now out there, close to half were filed in the first few months of the year. The notice letters, which are a required precursor to a lawsuit, include claims over lead in canned oysters, cookies, maple syrup, honey and licorice.

fiona_smith@dailyjournal.com