Appellate Court Gets It Right: Realistic Product Use Data Can Be Used by Businesses to Defend Lawsuits

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California’s First District Court of Appeal issued a unanimous and potentially far-reaching and precedent-setting decision on March 17, 2015, siding with businesses in our defeat of a lawsuit that sought to require cancer and birth defect warning labels for 100 percent fruit juice, packaged fruit, and baby foods that contain trace levels of lead. The case, Environmental Law Foundation v. Beech-Nut et al., was originally brought by an environmental group against multiple manufacturers and retailers in 2011 under California’s Proposition 65 law, which imposes the most stringent standard for lead (and many other chemicals) in the world. The decision has potentially significant implications.

BACKGROUND -

ELF’s appeal, filed in 2013, fundamentally challenged Alameda County Superior Court Judge Steven Brick’s prior acceptance of the exposure assessment proffered by our expert at trial. Her analysis, which concluded that Proposition 65 warnings were not required, was based on data on the average amount of lead that would be ingested from a product based on the number of occasions on which it is typically consumed over a two-week period. Her use of the two-week averaging period was supported by testimony from our expert toxicologists concerning the time period of susceptibility relevant to reproductive effects from lead exposure during pregnancy.

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