The California Court of Appeal for the First Appellate District recently upheld a trial court ruling that exposure to lead should be measured by an average exposure over time as opposed to a single day exposure and also discharged defendant food and beverage manufacturers of a duty to warn consumers of low regulatory levels of lead in its products.Environmental Law Foundation v. Beech-Nut Nutrition Corp. et al., Case Number A139821 (March 17, 2015)

Plaintiff, the Environmental Law Foundation (ELF), filed a complaint against Beech-Nut Nutrition Corporation and various other food manufacturers, distributors, and retailers, seeking enforcement of the provisions of the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly referred to as Proposition 65 (Health & Saf. Code, § 25249.5 et seq.).  ELF alleged certain of defendants’ products (baby foods and juices) contain toxic amounts of lead sufficient to trigger the duty to provide warnings to consumers.  After a bench trial, the trial court entered judgment in favor of defendants, concluding they had no duty to warn because they satisfactorily demonstrated that the average consumer’s reasonably anticipated rate of exposure to lead from their products falls below relevant regulatory thresholds.  ELF appealed.

After carefully examining both parties experts’ trial testimony and evidence, the Court of Appeal affirmed the trial court’s decision allowing food manufacturers to calculate exposure to Prop 65-listed chemicals (such as lead) over time based on actual data concerning how the particular food or beverage is consumed and based on an average of lead levels detected across lots instead of exposure calculations based on the food/beverage sample with the highest concentration of lead and consumption of that product each day.

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