According to a news source, trial begins April 8, 2013, in the Environmental Law Foundation’s Proposition 65 (Prop. 65) lawsuit against 28 food manufacturers and retailers in a California state court, alleging failure to warn the public that their baby and toddler foods and fruit juices contain lead, a chemical known to the state to cause reproductive toxicity or cancer. Envtl. Law Found. v. Beech-Nut Nutrition Corp., No. 11597384 (Cal. Super. Ct., Alameda Cnty., filed Sept. 28, 2011). Details about the case appear in Issue 412 of this Update. The trial will involve the manufacturing defendants and will resolve their affirmative defenses only. Trials over damages issues and claims against the retailers have not apparently been scheduled.
Among the defenses that the court will consider are whether (i) Prop. 65, as applied, is preempted under the Food, Drug, and Cosmetic Act and federal nutrition programs; (ii) exposure to the products’ lead levels is sufficiently high to require warnings; and (iii) enough of the lead in the food products is “naturally occurring” and thus exempted from Prop. 65. With few Prop. 65 cases reaching trial, court watchers are reportedly following the matter closely given its potential impact on other Prop. 65 litigation, particularly cases involving lead exposure. The plaintiff, which frequently files Prop. 65 lawsuits as part of its mission to “improve environmental quality” by enforcing environmental and community right-to-know laws, compiled a list of products tested to support the litigation. See Law360, April 4, 2013.