Dole Doesn’t Have to Warn of Lead Under California Law

Dole Food Co. and Nestle SA’s Gerber unit won a tentative ruling that they don’t have to warn consumers about lead contained in their baby food, packaged fruit and juices.

Judge Stephen Brick in California Superior Court in Oakland said that the companies, and other food makers facing a state lawsuit, showed that each of their products is below the regulatory “safe harbor” exposure level, and no warnings are required under California’s Proposition 65 toxins-warning law.

“There is no dispute that defendants’ products contain small amounts of lead,” Brick wrote in the tentative ruling July 15. Still, he said, the evidence showed the exposures in question are below 0.5 micrograms per day. A microgram is one millionth of a gram.

“Defendants need not provide Prop 65 warnings on their products,” he said. Brick rejected the companies’ arguments that Proposition 65 is preempted by federal toxin warning laws and the lead was naturally occuring and therefore exempt from the labeling requirement.

The Environmental Law Foundation, a Berkeley, California-based group, sued the companies, alleging that the foods contain unsafe levels of lead and demanding that they change their business practices to reduce those levels or provide a warning under California’s Proposition 65.

Packaged Pears

The products include grape juice, packaged pears and peaches, along with baby foods containing those fruits, carrots and sweet potatoes.

James Wheaton, the foundation’s legal director, didn’t immediately respond to an e-mail seeking comment on the ruling.

California is the only U.S. state with a right-to-know law requiring businesses to warn consumers about products or materials that contain chemicals known to cause cancer or interfere with reproduction.

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 case is Environmental Law Foundation v. Beech-Nut Nutrition Corp., RG11597384, California Superior Court, Alameda County (Oakland).

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