In Environmental Law Foundation v. Beech-Nut Nutrition Corp., No. RG11597384 (Alameda Cnty. Cal. Super. Ct. July 31, 2013), Judge Steven Brick ruled in favor of the defendant companies and held that any alleged exposures to lead in fruit juice and baby food products did not exceed the “safe harbor” level triggering a requirement to warn under Proposition 65. In doing so, the court ruled on a key issue that had not previously been litigated in any other Proposition 65 trial involving lead -- whether or not the “safe harbor” limit for lead exposure should be calculated on the basis of average exposure or maximum daily exposure.
Environmental Law Foundation, a private plaintiff that has been an active Proposition 65 enforcer for nearly two decades, conceded that the products are consumed intermittently, not every day, so that average lead exposure over long periods of time fell within the safe harbor limits. But Plaintiff argued that exposure to lead on any given day of consumption exceeds those safe harbors and therefore triggers the requirement to warn under Proposition 65. Rejecting Plaintiff’s theory, the court found that it is appropriate to average exposures to lead over more than a single day based on the evidence and expert testimony presented in the case. In particular, the court agreed with the defense experts, who testified that the lead levels in the products would not cause any increase in blood lead levels based on average consumption patterns. The court thus determined that none of the exposures exceeded the safe harbor level for lead. The court’s ruling provides important guidance to other food, beverage, and dietary supplement companies on how to measure exposures to low levels of lead in products under Proposition 65.
In finding for the companies on the “safe harbor” defense, the court also rejected Plaintiff’s argument that the court should defer to the principal agency for Proposition 65, the California Office of Environmental Health Hazard Assessment (OEHHA), which has a policy against averaging exposures to lead over more than a day. The court found that the opinions expressed in a 1991 declaration by an OEHHA staff person did not constitute a policy entitled to deference and should not be given any weight. In particular, the court noted that the declaration was not issued with any opportunity for public notice and comment.
The court also ruled against the companies on other defenses presented -- namely federal preemption and a defense that the lead in the products was naturally occurring. Under Proposition 65, naturally occurring levels of listed chemicals in foods are exempt. The court found that the companies failed to meet their burden to show that the lead was naturally occurring and did not adequately quantify how much lead was attributable to nonhuman as opposed to human sources.
As Proposition 65 cases generally settle before trial, this opinion is significant because of its ruling on issues involving the determination of average lead exposures that had not previously been litigated.