Baby Food Companies Tentatively Prevail in Prop 65 Lead Case

OAKLAND, Calif.A California judge has tentatively ruled that baby foods didn't require lead warnings under state law because the amount of exposure to the substance was below the "safe harbor" level.

The July 15 tentative decision marks a victory for Beech-Nut Nutrition Corp. and other baby food companies that were accused in a 2011 lawsuit of violating Proposition 65.

The defendants established the average user was exposed to less than 0.5 micrograms per day of lead, Judge Steven Brick of the Alameda County Superior Court stated. Because the exposure was below the "safe harbor" level for lead, the defendants were not required to include a warning under Prop 65.

Lead is one of the hundreds of chemicals that the State of California has identified as being known to cause cancer or birth defects or other reproductive harm.

Roughly 500,000 kids between the ages of 1 and 5 are living with unacceptable levels of lead, according to the Centers for Disease Control and Prevention (CDC). Exposure to lead is frequently unrecognized because there are no obvious symptoms, CDC has said.

Brick issued his 45-page ruling following a bench trial that lasted for about 10 days.

The Environmental Law Foundation alleged the defendants were required to place lead warnings on fruit, vegetable and grape drink products.

The defendants argued the warnings were not required because the exposure was below the safe harbor level, the warnings were preempted by federal law and the lead was "naturally occurring".

The judge rejected the latter two arguments.

Although the defendants had cited federal policies that encourage eating fruits and vegetables, Brick said no evidence was presented showing that a Prop 65 warning would cause consumers to eat fewer of these foods.

"Further, although it is clearly aware of this litigation, and has responded to it, the FDA has not taken the position that a safe harbor warning would conflict with its responsibilities to assure the safety of America's food supply or would amount to misbranding in violation of" the Federal Food, Drug and Cosmetic Act, he wrote.

The defendants also failed to establish the lead was entirely "naturally occurring" or what percentage of the substance met that definition, Brick ruled.

Exposures of listed chemicals are exempt from Prop 65's warning requirements if the substance is "naturally occurring". California regulations define "naturally occurring" as "a natural constituent of a food, or if it is present in a food solely as a result of absorption or accumulation of the chemical which is naturally present in the environment, in which the food is raised, grown or obtained".

The Environmental Law Foundation (ELF), based in Oakland, Calif., filed the lawsuit in 2011 against Beech Nut Nutrition Corp. Del Monte Foods, Dole Packaged Frozen Foods, Inc., Gerber Products Company and J.M. Smucker Company among others.

James Wheaton, ELF's legal director, didn't respond to a request for comment.

Brick gave the parties 15 days to file any objections to his tentative decision and ordered the defendants to prepare a proposed form of judgment. The judge has discretion to hold a hearing on any objections or proposals to a proposed decision before rendering his final ruling.