Four California residents brought a lawsuit earlier this month against 28 wineries for producing, manufacturing or distributing wine in California that allegedly contains inorganic arsenic in amounts far in excess of what is allowed in drinking water.  In the months ahead, the plaintiffs’ attorneys will seek to certify a class with respect to the claims and could seek to amend the complaint to add other wineries, distributors, or retailers as well.

The complaint brought in California Superior Court, Los Angeles County, captioned Doris Charles, et al. v. The Wine Group, et al., No. BC576061, alleges that these wines contain up to 4 to 5 times the maximum amount of arsenic allowed by the Environmental Protection Agency for drinking water.  Specifically, the lawsuit claims that the various defendants violated California law by producing, manufacturing, or distributing wine contaminated with arsenic and failing to inform consumers about the potential dangers.

The lawsuit, which seeks injunctive relief, civic penalties, disgorgement and damages, represents yet another example of the barrage of lawsuits being brought against food and beverage companies regarding various products and the advertising of those products.  In conjunction with the increase in regulations from the federal government and its agencies relating to the Food Safety Modernization Act (“FSMA”), there has been an increase in consumer awareness and the number of lawsuits advanced by consumers.

Though this litigation is only in its infancy, both sides are already advancing their respective positions in courts of public opinion.  Indeed, the plaintiffs’ attorneys have created a website,www.taintedwine.com, which attempts to inform (and attract) potential class members to this litigation.  But, on the other side, stark opposition to the claims raised in the lawsuit have already been advanced by industry groups, such as the Wine Institute.  A Fact Sheet on Arsenic, published by the Wine Institute in response the “unfounded litigation,” notes that “arsenic is prevalent in the natural environment in air, soil and water and food” and that the “U.S. government, both TTB and FDA as part of its Total Diet Study, regularly tests wines for harmful compounds including arsenic as does Canada and the European Union to ensure that wine is safe to consume.”  Further, while the “U.S. government has not published a limit for arsenic in wine . . . Canada, the EU, and Japan have set limits ranging from 100ppb up to 1000ppb – 10 to 100 times the level the EPA determined to be safe for drinking water.”  As such, the claims in this new lawsuit regarding arsenic levels 4 to 5 times the EPA level may prove in time to be much ado about nothing.

Nevertheless, one thing is clear, consumers (and their attorneys) will continue to closely monitor various foods and beverages consumed by the American public.  And, lawsuits such as this will continue appearing for the foreseeable future.