Judge Tentatively Rules Baby Food Makers Exempt from Warning of Lead

Posted: 07/19/2013  browse the blog archive

A California judge issued a tentative and proposed decision this week that would hold that Dole, Gerber, Del Monte, Smucker’s, and other food makers are not required to provide California consumers with health hazard warnings regarding lead in baby food, juices, and packaged fruits made by these companies.  The tentative decision followed a month-long trial in this high-profile Proposition 65 action.  The Environmental Law Foundation brought the action, alleging that food companies violated Proposition 65 by selling products containing lead, a chemical known to the State of California to cause cancer and reproductive harm, without first providing a health hazard warning.  The judge will allow the parties on each side of the case to file objections to the tentative decision, and may also hold a hearing for additional argument.

The products involved included baby foods containing carrots, peaches, pears, and sweet potatoes, as well as grape juice, packaged pears and peaches, and fruit cocktail. 

The defendants argued that the lead levels are low enough that a Proposition 65 warning is not required, that the lead was naturally occurring, and that the federal Food and Drug Administration’s food safety programs preempts Proposition 65, a state law.  While the judge disagreed on preemption and stated that the defense did not prove the lead was naturally occurring, he did concede that the lead was found to be below “safe harbor” levels.  “Safe harbor” levels are adopted by the State, and provide that if a defendant can prove its products expose users to a concentration of chemical that is below the safe harbor level, then it is exempt from the warning requirement under Proposition 65.

According to tests conducted by the defendants, the average user who consumed their products was exposed to less than .5 micrograms per day of lead, averaged over 14 days.  The Maximum Allowable Dose Level for lead, as set by California’s Office of Environmental Health Hazard Assessment, is .5 micrograms per day, for exposures that may result in reproductive harm.   The “no significant risk level” for lead established by OEHHA is 15 micrograms per day, for exposures that may result in cancer.  Because the judge tentatively found that defendants established that exposures to lead from their products were within the safe harbor limits for lead, the judge tentatively ruled that defendants exempt from the warning requirements of Proposition 65.

The Environmental Law Foundation is expected to object to this tentative decision. The defendants may object as well, regarding the tentative rulings that Proposition  65 is not preempted by federal law, and that lead is not naturally occurring.  There is a possibility that the judge may change his mind.

The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years.