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In Tentative Ruling, Baby Food Doesn't Need Lead Warning Labels

By Gabriella Khorasanee, JD on July 19, 2013 | Last updated on March 21, 2019

California's Prop 65, the first and only consumer "right to know" law in the U.S., requires businesses to post warning labels about toxins that may be present that could cause reproductive harm or cancer. Many companies, rather than put warnings on products, reformulated products to remove the toxins. Since California is such a large market, these toxin-free products are now distributed nationally, with all states receiving the benefit of Prop 65, notes KQED.

With all things, there's a dark side and the negative impact of Prop 65 is the increase in "shakedown" lawsuits initiated by attorneys to get quick settlements that are very lucrative for them. As a result, California's legislature is considering AB 227 -- a law to reform Prop 65 to allow businesses to avoid lawsuits if they pay a $500 fine and correctly post warning signs within fourteen days of receiving notice.

The latest product to come under the scrutiny of Prop 65 advocates is -- well, the one thing you want free and clear of toxins -- baby food.

The Environmental Law Foundation sued baby food manufacturers, including Dole, Gerber, and Beech-Nut, claiming that some foods contain unsafe levels of lead, and demanding that either Prop 65 warning labels be added, or the toxins removed from the food. Bloomberg notes that the foods particularly at issue contain sweet potatoes, carrots, pears, peaches and grape juice.

In a tentative ruling, Judge Stephen Brick, of the California Superior Court in Oakland, found that "Defendants need not provide Prop 65 warnings on their products." He rejected defendants' first two arguments: (1) that federal law preempted Prop 65 warnings; and (2) that the lead in the baby food was naturally occurring. Judge Brick, however, found defendants' argument that the exposure in question was below the "safe harbor" level of 0.5 micrograms, (microgram = one millionth of a gram) per day of lead, persuasive.

Finding a balance in protecting consumers and businesses will be difficult. Hopefully, Prop 65 reforms will discourage shakedown lawsuits without affecting consumer safety.

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