‘Significant increase’ in Prop 65 notices over lead, acrylamide, and cadmium in 2017/18, says Perkins Coie

26-Sep-2018 - Last updated on 26-Sep-2018 at 15:05 GMT

There has been a significant increase in food and beverage Prop 65 actions in the past five years, with particularly strong growth in notices relating to lead, acrylamide and cadmium, according to new data compiled by attorneys at Perkins Coie.

Speaking at a food litigation webinar hosted by the law firm last week, Perkins Coie senior counsel Steve K Hwang said Prop 65 notices on acrylamide had tripled between 2016 and 2017 as more plaintiffs alleged violations of the law, which requires firms selling products in California to provide warnings if their products expose consumers to hundreds of chemicals linked to cancer or reproductive toxicity.

As for lead, the subject of 243 Prop 65 notices in 2017, 2018 looks set to be a bumper year, with 217 notices in the first eight months of this year alone. Prop 65 notices for cadmium – the subject of 67 notices in 2017 – are also at record levels, with 75 notices filed in Jan-August 2018, said Hwang.

New rules (click HERE) may generate further challenges for industry, he predicted, although there had been some notable pushback on whether warnings are appropriate over acrylamide in coffee and breakfast cereals, with the Office of Environmental Health Hazard Assessment (OEHHA) recently moving to exempt coffee from Prop 65 warnings (following a court ruling requiring it) and a California appeals court arguing that Prop 65 warning on cereals could potentially mislead consumers.

(FDA commissioner Dr Scott Gottlieb also noted in a recent statement that if state officials were to require a Prop 65 warning on coffee it “could mislead consumers to believe that drinking coffee could be dangerous to their health when it actually could provide health benefits.”)

According to the office of the California attorney general, the most prolific Prop 65 litigants in 2017 (when settlements topped $25.8m) included The Chanler Group Plaintiffs (which secured 147 Prop-65-related settlements in 2017), Brodsky & Smith Plaintiffs (115 settlements), Consumer Advocacy Group (30), Ecological Alliance LLC (72), and The Environmental Research Center (60), which have made millions out of Prop 65 suits in recent years.

While some Prop 65 cases have real merit, many appear to be blatant revenue-generating exercises for the plaintiffs’ lawyers, Kristine Kruger, a San Francisco-based attorney with Perkins Coie’s food and beverage team, told FoodNavigator-USA earlier this month:

“Prop 65 remains very controversial as it’s generated so many bounty hunter lawsuits. Last year 76% of settlement money went to attorneys’ fees, so there’s a huge incentive for attorneys to get into this business.”

Meanwhile, the number of plaintiffs deciding to focus on Prop 65 litigation is also increasing, added Morrison & Foerster partner Michael Steel, given how easy it is to file a case and the fact that the burden of proof is on manufacturers to show their products are safe, not on the plaintiff to prove they are not.

“You don’t even have to leave your living room. You just go online and start shopping, then spend a couple of hundred bucks on a lab test and you could get $20,000 out of a company.”

California remains the state of choice to file food and beverage class actions

So what other issues should food and beverage manufacturers keep on the radar when it comes to food regulation and litigation this year?

If you look at overall food litigation trends, said Perkins Coie partner Patrick Thompson, the number of filings has been fairly steady over the past four years, with California remaining the destination of choice for enterprising plaintiff’s attorneys to file, although New York is gaining traction.

Glyphosate: One to watch

One topic to watch this year is glyphosate, which hit the headlines in April after the Environmental Working Group (EWG) published a report highlighting trace levels of the popular herbicide in oat-based food products, and again in August, when Monsanto was ordered to pay $289m in damages to a man (Dewayne Johnson) who alleged its glyphosate-based herbicide caused his cancer (a ruling it is appealing).

To date, most lawsuits over glyphosate residues in packaged foods have not attempted to argue that foods containing trace levels of glyphosate are inherently unsafe, but have instead argued (with mixed results) that consumers would not expect to find the herbicide in products marketed as ‘all natural.’

However, in a new putative class action lawsuit filed vs General Mills in Florida six days after the verdict in the Dewayne Johnson vs Monsanto trial, plaintiff Mounira Doss argued that General Mills had a duty to disclose the presence of glyphosate in Cheerios cereal products, but failed to do so. This was swiftly followed by a similar suit vs Bob’s Red Mill Natural Foods in California.

GMO labeling: Final rule expected soon

With the USDA’s final rule for a National Bioengineered Food Disclosure Standard passing to the Office of Management and Budget (OMB) on August 31, the final rule may be finalized relatively soon, predicted the Perkins Coie attorneys. (If the 90-day review period is not extended, this could potentially mean it could be published by the end of November.)

Corporate responsibility class actions: What’s a company’s legal duty to disclose?

Another area of litigation to watch is so-called corporate responsibility class actions, suits claiming harm from a company's failure to disclose alleged human-rights abuses in its supply chain (eg. forced child labor in the cocoa industry in the Ivory Coast and the fish and shrimp industry in Thailand), although to date, such cases have not proved successful, with suits vs Mars, Big Heart Pet Brands, Tri-Union Seafoods, and Nestlé all ultimately dismissed, said Perkins Coie.

Natural and healthy claims: The FDA is on the case

After two years of radio silence, during which some legal commentators – and several judges dealing with civil litigation on the issue – suspected it might die on the vine, the FDA has given its clearest indication yet that it will attempt to define ‘natural’ for the purposes of food labeling, noted Perkins Coie associate Cassandra Abernathy, citing a March 2018 speech from FDA commissioner Dr Scott Gottlieb.

The FDA is also considering a standard symbol or icon to denote ‘healthy’ on food labels, looking to re-assess standards of identity for some food products (tackling the thorny plant ‘milk’ debate), and considering petitions asking it to allow more consumer-friendly names for certain substances on ingredient declarations (vitamin B6 instead of pyridoxine, or potassium salt instead of potassium chloride), she said.

Nutrition Facts Panel: Are you ready?

The deadline for compliance with the new Nutrition Facts label is January 2020 for large firms (food sales of $10m+) and January 2021 for smaller ones.