A Prop. 65 Win for Winemakers: No Separate Warning Required for Inorganic Arsenic

by Stoel Rives - California Environmental Law
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Stoel Rives - California Environmental Law

The California Court of Appeal recently handed a victory to winemakers, ruling that a specific Proposition 65 (“Prop. 65”) warning is not required regarding the presence of inorganic arsenic. The lawsuit, Charles et al. v. Sutter Home Winery et al., was originally filed in 2015 and alleged that wines made by over 15 named defendants exposed consumers to inorganic arsenic without the correct Prop. 65 warning.

Inorganic arsenic is a chemical identified by the State of California as a carcinogen and reproductive toxicant, and plaintiffs argued that defendants’ products required a specific warning to inform consumers about exposure to inorganic arsenic. Defendants prevailed on demurrer because the trial court found that the existing “safe harbor” warnings for alcoholic beverages complied with California’s Prop. 65 warning requirement as a matter of law, and that no additional warning for inorganic arsenic was required. In other words, the trial court determined that Prop. 65 does not require both a general warning and specific warning for an alcoholic beverage product. Plaintiffs subsequently appealed.

On May 9, 2018, the Court of Appeal of the State of California, Second Appellate District affirmed the trial court’s ruling and refused to revive the action, stating that the products’ current alcoholic beverage warning adequately notifies customers about potential risks. In determining that “the failure to provide a separate arsenic warning is not a violation” of California’s Prop. 65 labeling law, the Court reasoned that the Office of Environmental Health Hazard Assessment requires companies to disclose just one chemical for each health risk. Alcoholic beverage warnings already alert customers that consuming alcohol could result in cancer and reproductive harm, which rendered an additional warning about inorganic arsenic unnecessary.

The Court also found that the Prop. 65 action was barred by the doctrine of res judicata as to the named defendants who were already parties to a consent judgment in a prior Prop. 65 case, Bonilla v. Anheuser-Busch. There, the complaint alleged that the defendants failed to warn consumers that the alcoholic beverage products contained chemicals known to the State of California to cause cancer and reproductive harm. The Court confirmed that the Bonilla consent judgment constituted a “full, final and binding resolution” that released future claims based on exposure to a listed chemical in the products. Because the Charles case fell within the terms of the release in Bonilla, the Court ruled that it was barred by the prior consent judgment.

This ruling is a great win for winemakers but, more importantly, it should serve as a deterrent to overzealous plaintiffs who want to impose additional obligations on companies that are already in compliance with Prop 65. And the decision confirms the res judicata effect of consent judgments executed under Prop 65, which is helpful to companies in any industry impacted by Prop 65.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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