Wines Don't Need Arsenic Warning, Calif. Appeals Court Says

Posted: May 11, 2018

A California appeals court refused to revive a proposed class action arguing wines that contain allegedly unsafe levels of arsenic should include an arsenic warning, saying the products' alcoholic beverage warning sufficiently notifies customers about potential risks.

A panel of California Second Appellate District judges on Wednesday said the lack of a separate arsenic warning on wines does not violate California's Proposition 65 labeling law, because the Office of Environmental Health Hazard Assessment requires companies to disclose just one chemical for each health risk. In this case, the alcoholic beverage warning alerts customers that consuming the wine could result in cancer and reproductive harm, making an additional arsenic warning unnecessary, the appeals court said.

"Under the current regulatory scheme, the failure to provide a separate arsenic warning is not a violation of the regulations or the initiative itself," the filing said.

Launched in March 2015, the proposed class action alleges wines made by Sutter Home Winery, Treasury Wine Estates Americas Co., F. Korbel & Bros. and others contain arsenic, a toxic chemical that was added to the beverages "to filter, clarify, fine, sweeten, color, stabilize or otherwise manipulate the wine product before sale," and should therefore include a Proposition 65 warning for exposure to the arsenic.

Proposition 65 requires businesses to warn customers if their products include chemicals that could cause cancer or reproductive issues. The suit claims Proposition 65 lists arsenic as both a reproductive toxicant and carcinogen.

But the Office of Environmental Health Hazard Assessment does not require companies to issue separate warnings for beverages that contain multiple chemicals, the appeals court said.

Additionally, the claim is barred by a consent judgment in a separate case, Bonilla v. Anheuser-Busch, the filing said. The consent judgment, which many of the defendants signed, serves as a "full, final and binding resolution" against alleged violations of Proposition 65 by exposure to certain products, including alcoholic beverages, according to the filing.

The appeals court rejected consumers' attempt to amend their complaint.

"This decision upholds the rule of law and is good for California agriculture and consumers," Robert C. O'Brien of Larson O'Brien LLP, counsel for winery F. Korbel & Bros., said by email.

Counsel for the other parties didn't respond Thursday to requests for comment.

The plaintiffs are represented by Brian S. Kabateck and Drew R. Ferrandini of Kabateck Brown Kellner LLP and Stuart B. Esner of Esner Chang & Boyer.

The defendants are represented by Frederick McKnight, Charles H. Moellenberg Jr. and Kerry C. Fowler of Jones Day, and Chris Locke and C. Brandon Wisoff of Farella Braun & Martel LLP, among others.

The case is Doris Charles et al. v. Sutter Home Winery Inc. et al., case number B275295 in the Court of Appeal of the State of California, Second Appellate District.

By Rachel Graf
May 10, 2018 
Source: Law360

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