California Prop 65 Ruling Victory for Dietary Supplements

SAN FRANCISCOA California trial court has recognized the right of dietary supplement companies to assert a defense to the warning requirement under The Safe Drinking Water and Toxic Enforcement Act of 1986.

In a recent decision, judge John E. Munter of the San Francisco Superior Court ruled dietary supplements are "foods" under the California state law commonly known as Proposition 65.

The ruling is important for the dietary supplement industry because chemicals that are "naturally occurring in food" are exempt from Prop 65's warning requirement. The 27-year-old law requires disclosures if consumer goods, foods and dietary supplements contain carcinogens or reproductive toxicants that exceed specified limits.

Peg Carew Toledo, a partner with the Sacramento, Calif. law firm Mennemeier, Glassman & Stroud LLP, pointed out the trial court's decision isn't binding on other courts in California. The ruling won't take precedence unless an appeals court affirms it, and Toledo said the decision cannot be appealed immediately because there has been no final judgment in the case.

Still, Toledo said the ruling provides clarity to the extent plaintiffs have been arguing the naturally occurring exemption doesn't apply to dietary supplement companies. Supplement companies have faced a number of Prop 65 lawsuits in recent years often at the direction of the Environmental Research Center.  

In lawsuits brought against Nature's Bounty, Inc., Nature's Products, Inc., Whole Foods Market California, Inc. and several other companies, plaintiff Stephen Gillett claims the defendants have failed to provide proper warnings, exposing consumers to lead. Defendants have asserted any exposures to lead from their products fall within the naturally occurring exemption.

In his Feb. 13 decision, Munter didn't rule on whether the alleged lead in the defendants' products was naturally occurring.

In related news, California Assemblyman Mike Gatto has introduced an amendment that would give businesses 14 days to comply with a violation of Prop 65, barring enforcement actions if the violation is corrected within the two-week period.