California Court Of Appeal Holds That 'Safe Harbor' Defense Precludes Suit Based On Presence Of Inorganic Arsenic In Wines

Author:Mr Marc Sorini
Profession:McDermott Will & Emery

Last month, the Court of Appeal of California, Second Appellate District, Division Four, issued an opinion in Charles v. Sutter Home Winery, Inc. (2018 Cal. App. LEXIS 418*; 2018 WL 2126987). The court considered the Plaintiffs' appeal of their dismissed putative class action complaint brought under the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65. The appeal challenged the adequacy of the warning label that the Defendants, a group of wine suppliers, provided on wines that contained allegedly unsafe levels of inorganic arsenic, a chemical listed by the State of California as a carcinogen and a reproductive toxicant (a "listed chemical"). In a win for the wine industry, the Court of Appeal upheld the dismissal of the case.

Proposition 65 requires that any person who knowingly and intentionally exposes another person to a "listed chemical" in the course of doing business must provide a "clear and reasonable" warning before the exposure. California's Office of Environmental Health Hazard Assessment (OEHHA), the lead agency responsible for implementing Proposition 65, has adopted several "safe harbor" warning provisions deemed to satisfy Proposition 65's requirements, including a safe harbor warning for general consumer products and one for alcohol beverages, specifically.

The wines in question in Sutter Home Winery displayed the safe harbor warning for alcohol beverages. The Plaintiffs argued that the alcohol beverage safe harbor warning was insufficient, and that Proposition 65 required the Defendants to provide an additional, specific warning which disclosed the presence of the inorganic arsenic. The Plaintiffs sought injunctive relief and restitution of the purchase price paid for the arsenic-containing wines, but did not allege any personal injury or physical harm resulting from consumption of the wines in question.

Citing OEHHA's determination that consuming 10 micrograms of inorganic arsenic per day (except through inhalation) poses "no significant risk" of cancer, the Plaintiffs argued that wines containing more than 10 micrograms of inorganic arsenic per liter should bear an arsenic-specific warning. The Defendants countered that applying the "no significant risk" standard to wines would be inappropriate because the OEHHA estimate is based on drinking water consumption and assumes that a person consumes two liters of water daily for a lifetime. To match that level of exposure for wines, the...

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