The Arsenic in Wine Class Action Dismissal – what it means

On March 23, 2016, the Superior Court for Los Angeles County entered an order dismissing Charles, et al. v. The Wine Group, et al., the last remaining class action lawsuit based upon the presence of minute quantities of arsenic in wine.  (For a discussion of arsenic in wine, see our earlier blog post A Layperson Looks At Arsenic in Wine).  Several other class actions in other states had earlier been dismissed voluntarily by the plaintiffs. 

The dismissal was at the pleading stage of the case, which means that there was no discovery and no trial.  The Court essentially said that even if everything the plaintiff’s claimed was true they didn’t have a case. That is what the appeal (already announced by the plaintiffs) is going to be all about. This case will be important to establishing the parameters of the safe harbor that compliance with Proposition 65 is supposed to provide to the wine industry.*

The Charles plaintiff’s claimed that the defendant wineries violated Proposition 65.  That is, of course, the law that gave rise to the proliferation of signs at every cash register at every store in the state stating: This product contains [or---This facility uses] chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.  Plaintiffs claimed that Prop 65 required the defendant wineries to disclose specifically that their wines contain small quantities of arsenic.

Those claims were rejected because plaintiffs did not allege any physical injury resulting from arsenic. Further, the plaintiffs conceded that “the danger of arsenic varies with the level of concentration (as it does with every toxin) and that arsenic can be present in safe drinking water, so long as the concentration level is low.”  In other words, these lawyer-driven claims didn’t show that any real harm existed from the low levels of arsenic that exist in almost all wines.

The court then said that Proposition 65 doesn’t require disclosure of the specific chemicals that give rise to the duty to post the general warning.  This is important because there are over 800 compounds “known to the State of California” to be potential carcinogens or teratogens, and the list is available on-line.  Can you imagine what a label listing 800 chemical compounds would look like?

Turning to specifics, the Judge noted that the list “includes, for instance ‘Aloe Vera, non-decolorized whole leaf extract,” “Aspirin,” “Oral Contraceptives, sequential,” ‘Salted fish, Chinese-style,” “Unleaded gasoline (wholly vaporized),’ ‘and “Wood dust.’”  The point the Judge made was that California law requires only the general warning.  At that point the consumer is the one responsible or obtaining information about minute (and here the parts per billion is truly minute) specific compounds “from the party responsible for the exposure after the warning, rather than through the warning.” 

The Judge then made the obvious point that requiring disclosure of specific compounds would make the warnings “too congested and cumbersome to read and understand.”  That was an understated observation by the Judge.

Wine does not include the “known to the State of California” warning.  Instead, all bottles carry the warning prescribed by both federal and California law:

WARNING: Drinking Distilled Spirits, Beer, Coolers, Wine and Other Alcoholic Beverages May Increase Cancer Risk, and, During Pregnancy, Can Cause Birth Defects.

The Court then held that the warning given is “a designated safe harbor provision that specifically applies to ‘wine’” and is sufficient by itself.  This is important to every producer in the wine industry because it is a guide to lawful conduct. Everyone wants to know how they can be complaint. The Judge here answered that question: make sure that the Proposition 65 warning requirements are observed.

For those reasons the Judge dismissed the complaint and told the plaintiff’s that there was no way they could amend it to actually prove a case.  That order can be appealed (and the plaintiff’s said that they will appeal it), but, in our view, the dismissal should be affirmed. Keep in mind that an appeal that results in the Judge’s order being affirmed would not be a bad thing because then the decision would have a broader precedential effect. The message to the plaintiff’s here is be careful what you ask for.

The bottom line is that the decision both terminates a meritless claim and provides an important precedent for the industry.  There are undoubtedly traces of some of the 800-plus compounds on the “known to California” list, other than arsenic, in many products, including wine.  Putting the prescribed warning on the bottle protects producers from having to disclose specific compounds and from future frivolous lawsuits. So make sure your labels are compliant!

Finally, when you raise your next glass, please remember to toast the Superior Court and this Judge for a sound, well-reasoned rejection of what is hopefully the last lawsuit based upon the presence of minute quantities of arsenic (or anything else) in wine.  Salut!

 

*n.b. Hinman & Carmichael LLP represented defendants in the arsenic cases, and served as regulatory counsel to the joint defense committee