EnvironmentalistsFile Prop 65 Suit Against Chocolate Manufacturers

EnvironmentalistsFile Prop 65 Suit Against Chocolate Manufacturers

PALO ALTO, Calif.--People have worried aboutthe weight and pimples associated with eating chocolate, but now a publicinterest group is saying that the levels of lead and cadmium found in chocolateproducts may cause cancer and/or reproductive problems. The AmericanEnvironmental Safety Institute (AESI), a nonprofit corporation that analyzesfood toxicity, filed an action in the Los Angeles Superior Court May 8 askingcandy manufacturers Hershey Foods Corp., Kraft Foods North America Inc., MarsInc., Nestle USA Inc., Rocky Mountain Chocolate Factory Inc. and Sees CandiesInc. to label products as containing these metals. The suits also ask that thecompanies pay restitution to anyone purchasing these products without warnings,as well as pay civil penalties of up to $2,500 per day, per violation. Accordingto AESI (www.aesi.ws), the request falls underProposition 65, a California initiative approved in 1986 listing chemicals knownto cause cancer, birth defects or reproductive problems.

In addition, AESI filled concurrent petitions with the U.S.Food and Drug Administration (FDA) and the California Department of HealthServices (CDHS). In the FDA petition, AESI requested that in part of Title 21 ofthe Code of Federal Regulations, Cocoa Products: Standards of Identity, beamended to establish that no form of cocoa or chocolate product sold in theUnited States can contain more than .02 parts per million (ppm) of lead and .02ppm cadmium. In the petition to CDHS, AESI asked the department to adoptregulations under the California Childhood Lead Poisoning Prevention Act to listchocolate products containing more than .02 ppm of lead as environmental leadcontamination.

According to AESI, the lead in chocolate products may bethe result of sloppy manufacturing practices and poor raw materialspurchasing practices, in which lead and cadmium may evolve from usingpesticides and fertilizers on cocoa bean crops. Also, the alkaline solution(e.g., potassium carbonate) that is used to darken the color of chocolate, mayhave up to 5 ppm of lead. Interestingly, several organic chocolate products thatdo not use pesticides or alkaline were found to have lower levels than theirnonorganic counterparts in lead and cadmium.

AESI suggests that manufacturers should be more vigilant infinding cocoa beans with the least amount of lead and cadmium; should removecocoa bean husks and inner skins that contain more lead; and should screen theingredients that are used in chocolate products. The chocolate companies arehighly profitable, major corporations that have deep resources for research anddevelopment, AESI said. They market heavily to children, [and] they owe itto those children, our children, to make their chocolate products as safe aspossible.

The Web site www.ChocolateandCocoa.org--sponsored by theChocolate Manufacturers Association, the American Cocoa Research Institute, theWorld Cocoa Foundation and the Cocoa Merchants--reported that most of thenaturally occurring lead is in the shell of the cocoa bean, which is removedduring processing, and pesticides used to treat cocoa trees are infrequentlyapplied and do not add lead to the beans used in chocolate. The industry hasalways made every effort to provide a very safe product, and we continue to doso, the organization stated.

The chocolate manufacturers refuted the claims made by AESI,citing they were baseless and a brazen attempt to extort responsiblebusinesses. In fact, California Attorney General Bill Lockyear has alreadyruled on these allegations when they were brought to his attention by AESI in2001. In a Sept. 28, 2001, letter sent to AESI and the counsel for the chocolatemanufacturers in question, Lockyer stated that based on the information gatheredfrom the states investigation, the lead present in chocolate products is notdue to known human activity. He also noted that in recent lead levels proposedby the Committee on Cocoa Products and Chocolate of the Codex AlimentariusCommission of the World Health Organization, the standard was set at 1 ppm forcocoa powder, 1 ppm for chocolate liquor and 0.1 ppm for cocoa butter. And whilecadmium is a listed carcinogen, Lockyer reported it posed no significant riskfor cancer when ingested.

Lockyer already has reviewed the allegations anddetermined that the lawsuit [at that time] lacks merit, said MicheleCorash, counsel for the companies named in the lawsuit. She added that theminute traces of metals such as lead pose no risk to consumers. This lawsuitis simply a shameless attempt to exploit a well-intentioned law for financialgain.

Lockyer left no doubt as to his views of the suit when heconcluded his letter. It is unusual for the attorney general to publiclystate that he has reviewed a matter under Proposition 65 and determined that itis not appropriate to proceed on the claim. Nonetheless, because these productsare consumed by so many Californians, we think it is important for the public tobe aware that the attorney generals decision not to commence a civil actionin this matter is based on a conclusion that the action would lack merit.

AESI continues to stand behind its beliefs. Wedont know how the attorney general conducted his investigation last fall. [W]eurge him to revisit his initial conclusions in light of the extensive newresearch evidence developed by the institute as to the human activity sources ofmost environmental lead.