In September 2013, the Federal Drug Administration (FDA) released information suggesting the presence of arsenic in rice. This week, Consumer Advocacy Group, Inc., a non-profit organization that files numerous Proposition 65 lawsuits every year, issued notices of violation alleging that companies—including grocers—violated California law by selling rice containing arsenic without a Prop 65 warning. Consumer Advocacy issued similar notices in late 2013 and may very well issue more in the near future.
Prop 65 requires businesses to place a warning on products containing chemicals known to the State of California to cause cancer or reproductive toxicity. California maintains a list of such chemicals, which numbers over 800 chemicals and includes arsenic. For more information on this list of chemicals, click here.
Unlike other consumer product safety regulations, private individuals and organizations, such as Consumer Advocacy, can enforce Prop 65. Indeed, Consumer Advocacy files multiple lawsuits a year with the intention of extracting settlements from companies in the targeted industry. Nonetheless, below are several defenses available in response to such a lawsuit as follows:
Safe Harbor Exception: Prop 65 provides for allowable levels of listed chemicals to exist in food products. According to the FDA, rice and rice products contained an average of 0.1 to 7.2 micrograms of inorganic arsenic. The Safe Harbor Level set by the Office of Environmental Health Hazard Assessment is 10 micrograms per day. If the FDA’s data is accurate, there may be a Safe Harbor Exception defense.
Naturally Occurring Defense: A chemical is “naturally occurring” if it is “a natural constituent of food, or if it is present in food solely as the result of absorption or accumulation of the chemical which is naturally present in the environment in which the food is raise, or grown, or obtained.” Cal. Code of Regs. Tit. 27 § 25501(a)(1). Arsenic is naturally found in soil and water and is absorbed by plants regardless of the growing practice. As a result, this defense is a feasible and colorable response to a Consumer Advocacy-issued Prop 65 notice.
Grocers may have received Consumer Advocacy-issued Prop 65 notices of violation. In this instance, the targeted product is rice. However, given the list of 800 chemicals on California’s Prop 65 list and over-zealous efforts of organizations like Consumer Advocacy, grocers can expect further Prop 65 notices and should be prepared to respond.
This article was authored by Melissa Thorme and Justin Delacruz, attorneys in Downey Brand LLP’s Food and Agriculture Practice. Melissa is a partner who practice focuses in the areas of water quality, wastewater, agricultural runoff, permitting, enforcement defense and agricultural law, including Prop 65 defense. She may be reached by email at [email protected]. Justin focuses his practice in the area of commercial litigation representing and advising food producers, processors and retailers. He may be reached by email at [email protected]. Melissa and Justin may be reached by phone at (916) 444-1000.