Dole Food Co. (DOLE) and Nestle SA (NESN)’s Gerber unit are among food makers facing a trial in California today over accusations they violated a state law requiring them to warn consumers of unsafe levels of lead in baby food, fruit and juices.
Dole, Gerber and Del Monte Foods Co. all make children’s foods that contain lead and should change their business practices to bring the levels down or provide a warning under California’s Proposition 65, a toxins-warning law, the Environmental Law Foundation said in its 2011 suit.
Judge Stephen Brick in California Superior Court in Oakland heard testimony today, the first day of a four-week trial, from an expert for the food makers who said the foundation’s analysis overestimates children’s exposure to lead in the products.
“Obviously this number greatly overestimates, because it assumes you eat” the foods “every single day,” said Barbara Petersen, principal scientist at Exponent, a scientific and engineering consulting company.
The products include grape juice, packaged pears and peaches along with baby foods containing those fruits, carrots and sweet potatoes.
The stakes for the companies, food stores and consumers are huge, said attorney Carol Brophy of Sedgwick LLP, who has defended companies in Proposition 65 lawsuits. If Dole and the others lose, the effects will go far beyond baby food, she said.
“It’s going to require that in California every food will have warnings, and it will be on everything,” Brophy, who’s not involved in the case, said last week in a phone interview. “You are going to scare mothers of children, and that’s a whole lot of confusion in California. For California consumers, this isn’t free. A jar of baby food is going to pay for that.”
Dole, based in Westlake Village, California, is the world’s biggest producer of fresh fruit. Vevey, Switzerland-based Nestle is the world’s biggest food company. Del Monte Foods, based in San Francisco, is controlled by KKR & Co. (KKR)
California is the only U.S. state with a right-to-know law requiring businesses to warn consumers about products or materials containing chemicals known to cause cancer or reproductive toxicity. Proposition 65 warning signs and labels are posted in stores, gas stations, office buildings and restaurants. The law carries fines of $2,500 a day for each violation.
The food companies say their products contain trace levels of lead below the warning threshold of Proposition 65, according to court filings.
Even if the measure applied, the warnings wouldn’t be allowed because they conflict with U.S. Food and Drug Administration positions on lead in the foods in question, Michele Corash of Morrison & Foerster LLP, an attorney representing the companies, said in a March 15 trial brief.
The FDA said in a February letter to the head of Washington state’s agriculture department that Proposition 65 warnings for lead are “unnecessary and would inaccurately portray the foods as a health risk,” according to the brief.
Corash said the environmental group’s positions are based on “unprecedented interpretations of the Proposition 65 regulations for which there is no legal or policy support.”
“The warning remedy plaintiff seeks, no matter how it is framed, will mislead consumers, conflict with federal goals of encouraging increased fruit and vegetable consumption, and make it impossible for producers to comply with both the state and federal requirements,” she said in the brief.
Wendy Johnson-Askew, a spokeswoman for Nestle in Florham Park, New Jersey, said the company will fight the allegations. Marty Ordman, a Dole spokesman, didn’t return a voice-mail message last week seeking a comment on the case.
Laura Baughman, an attorney at Baron & Budd PC who is working with the Oakland-based Environmental Law Foundation on the case, said companies can comply with both federal and state laws regarding toxin warnings.
“That the FDA wants children to eat their vegetables does not conflict with a Proposition 65 disclosure informing parents which food products contain lead,” she said in a court filing.
The FDA letter to Washington State is inadmissible in court and doesn’t provide the companies with a pre-emption defense because it doesn’t prohibit them from complying with Proposition 65, she said.
Proposition 65 is enforced primarily through private lawsuits against businesses. The lead-warning complaint also targets grocery store companies for their house-brand foods.
Those claims were put on hold and the grocery companies are bound by the decisions of the Oakland judge, James Wheaton, legal director at the Environmental Law Foundation, said in a phone interview.
Tuna companies won a Proposition 65 lawsuit in 2006 after the state sued Bumble Bee Seafoods LLC and other tuna makers to determine whether consumers should be warned about mercury in the fish. A San Francisco judge ruled that federal law pre-empts Proposition 65, that the amount of mercury was below the warning threshold and that the mercury was “naturally occurring” and thus exempt from the labeling requirement.
A state appeals court upheld the judge’s determination that a warning wasn’t necessary because of evidence that mercury was naturally occurring and declined to review the judge’s other two reasons.
The case is Environmental Law Foundation v. Beech-Nut Nutrition Corp., RG11597384, Alameda County, California, Superior Court (Oakland).
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