A Note from John Hinman: Starting on March 19th (last week) three class-action lawsuits (one in California, one in Florida and one in Louisiana) have been filed against wineries and retailers alleging unsafe levels of arsenic in wine. These plaintiff class-action lawyer generated lawsuits have caused a great deal of concern (and many questions) by wine consumers, the wineries producing the products and the retailers selling the products. We represent many wineries and retailers that are affected and have taken the initiative to locate and engage product liability counsel for our clients, as well as to educate ourselves and our colleagues in what issues are really involved.The first step is looking at the underlying basis of the lawsuits – the presence of arsenic in the food supply, and in wine. The blog post below explains the scientific issues in a rational way and in the context of the food supply.
Lawsuits have been filed over the alleged presence of small amounts of arsenic in wine, preceded by orchestrated hype in the media. In this blog, I offer my perspective about the factual allegations in the lawsuits. I am a lawyer, not a toxicologist, so these thoughts are the perspective of a layperson. We will address the legal aspects in forthcoming posts.
Is This Really News?
Did I know before the lawsuits that some wines had minute amounts of arsenic? No, because I had not thought about it. If I had looked, I could have found numerous articles on the web and in print that disclosed that fact. It was, in fact, well-publicized earlier but brought to the forefront by the pre-lawsuit hype.
The Dose/Response Relationship—A Basic Concept of Toxicology
Toxicology is the branch of science that studies the harmful effects of chemicals. One of the basic concepts of toxicology is the relationship between the “dose,” meaning the amount of a chemical introduced into an organism, and the “response,” meaning the reaction (if any) of the organism to the chemical. The shorthand catch-phrase for that concept is: “The poison is in the dose.” There are two important corollaries to that phrase:
- Any compound can cause death or serious health effects if introduced in sufficient quantities. People have died from drinking too much water at one time.
- Just because a chemical causes harm at some quantity does not mean that it causes harm at every quantity. Every year, some people die from drinking too much alcohol at one time, but many, many more people drink alcohol in moderate quantities, do not suffer any ill effects, and derive benefits from the consumption.
The dose/response relationship is important when evaluating arsenic. Because a relatively small dose of arsenic can cause lethal effects, it has been a favorite of poisoners. It is said, for example, that arsenic helped Catherine de Medici to alter the course of European history. As we will see, however, the dose that Catherine was adding to her victims’ libations was many million-folds larger than the quantities allegedly found in wines today.
Closely related to the dose/response relationship is the concept of “sufficient challenge,” first articulated by Dr. Henry Smyth. He noted that exposing animals to very small amounts of chemicals known to be lethal at higher doses actually produced animals that were healthier and longer-lived than animals who were not exposed. Dr. Smyth’s hypothesis was that the body’s defense mechanisms were stimulated and strengthened by the exposure to small amounts of the chemicals.
What Is Arsenic And From Where Does It Come?
Arsenic is a metallic element found in the earth’s crust. Because it is an element, arsenic cannot be destroyed. It becomes available in the environment from both natural and human activity. Some leaches out from the soil in the form of dust, and volcanic eruptions typically emit large quantities of arsenic. Humans have introduced arsenic into the environment through mining, the former use of pesticides containing arsenic compounds, industrial processes, including metal smelting; burning coal and wood, and using it as a wood preservative.
Arsenic is primarily found in combinations with other elements that form either organic arsenic or inorganic arsenic. Of the two classifications, inorganic arsenic has the higher potential to cause toxicological effects in humans.
Arsenic, and particularly inorganic arsenic, is classified as a carcinogen by the EPA, the State of California and the International Agency for Research on Cancer. None specifies a “safe” limit for arsenic exposure. However, as discussed below, it is well known that arsenic is found at low levels in the food chain, but there are few regulatory standards. Given that arsenic cannot be eliminated, the current levels of exposure from food, water and air has been deemed a risk that need not be further regulated.
Where Is Arsenic Found In The Food Chain?
Arsenic is found in the soil, the air and in water. It is absorbed by plants, fish, and animals, and it thereby enters the human food chain. Arsenic is found at very low levels in drinking water, as well as many foods and beverages, including fruits, vegetables (Brussel Sprouts and other cruciferous vegetables in particular), fish, poultry, rice, and, yes, some wine. Since the widespread restrictions on the use of pesticides with arsenic, none of this arsenic is intentionally introduced.
Arsenic is present in the food chain at levels that are so small that people have only recently been able to measure them. For example, the current U.S. EPA standard for drinking water is 10 parts per billion (“ppb”). That measurement is difficult to conceive for most of us. Here are some analogies used to illustrate what 1 ppb means:
- One second in almost 32 years;
- One drop of ink in the largest gasoline tanker truck; and
- One pinch of salt on 10 tons of potato chips.
If those don’t resonate, there are more on the internet. The idea is that one ppb is a really, really small amount.
A Case Study—Rice
In 2012, Consumer Reports published the results of its study on the arsenic content of rice and rice products. The tests found that most rice had 100-200 ppb of arsenic, but a large number of samples exceeded 200 ppb—up to 917 ppb in one case. Arsenic in brown rice exceeded the arsenic in white rice samples from the same source. There were no U.S. standards for arsenic in rice at the time. Consumers Union advocated a standard of 120 ppb, but none has been enacted yet. A UN organization has since set a standard of 200 ppb. Certainly no one has banned or suggested banning rice from the human diet.
Well, that’s easy---just give up rice and switch to potatoes, right? Not so fast! Potatoes also contain some arsenic, and they contain solanine, a known toxin. The average potato contains about 8 mg. of solanine. The dose toxic to humans is 20-25 mg. While rare, poisoning from potato consumption has been reported. Therefore, switching from rice to potatoes does not eliminate risk; it merely changes the risk profile. We can evaluate from our own experience and the knowledge of the vast amounts of both rice and potatoes that are consumed, that the risks of either are relatively minor.
Arsenic And Wine
Lawsuits have been filed against wine producers, based upon the findings of a laboratory (looking for testing work) that tested some wines for arsenic levels. The laboratory has yet to report its exact findings, Instead, the class action lawyers allege in hyperbolic, nonscientific language that the arsenic levels in some wines exceeded the drinking water standard “in some cases up to 500% or more.” Translation: the highest levels they found were about 50 ppb (50 seconds in 32 years). Moreover, when CBS Morning News reported the story, it did its own tests on four wines, and it got results that were “considerably lower” than those alleged by the complaint, including one that was under 10 ppb.
Testing for the presence of a chemical at concentrations of parts per billion requires rigorous and sophisticated analysis. It is supposed to be done by technicians who are independent and have no personal interests at stake. The fact that CBS News’ test results were well below those of the testing laboratory used by the plaintiffs raises many unanswered questions that will eventually be addressed.
Label disclosures by food and beverage producers are regulated by federal law. Food producers are required to disclose the ingredients in their products, not the constituent compounds in those ingredients. The ingredients in Rice Krispies, for example are: “Rice, sugar, contains 2% or less of salt, malt flavor. BHT added to package for freshness.” Neither Kellogg’s nor any other producer lists “sodium” and “chlorine” for salt, let alone the all of the chemicals present in ppb in what we know as “rice.” For wine, the assumption is that consumers know it’s fermented grape juice. Producers disclose the origin of the grapes, the alcohol content, and use of sulfites, not the constituent compounds in the grape juice.
But what of the factual allegations in the complaint? What if some wines have arsenic over the drinking water standard?
- First, there are no federal or state standards for arsenic in wine. The drinking water standard does not apply. The vast majority of people drink much more water (2 liters) than wine on a daily basis, so the exposure standard would be different. The few who habitually reverse the roles of water and wine are likely to suffer adverse health effects for reasons unrelated to arsenic.
- Second, the federal government (the TTB) routinely tests samples of wine in the U.S. market for the presence of many constituents, including arsenic. So, the fact that some wines contain low levels of arsenic has been well known—and publicized, long before the current litigation. The U.S. government has seen no need to regulate. See Point 1 above.
- Third, Canada does have a limit for arsenic in wine—100 ppb. The EU’s Organization of Vine and Wine has a limit of 200 ppb for arsenic in wine. The results reported by the plaintiff’s laboratory, even if accurate, are well below those standards.
So, what am I going to do about arsenic in wine? First, I am well aware that worrying has its own adverse health effects that are more immediate and perceptible than any that might result from minute amounts of arsenic. So, once I make up my mind, I am going to stick with my decision.
Second, while science can find chemicals in ppb quantities, it cannot yet tell you how much, if any, is risk-free. Nor can it tell you how much, if any, is needed to benefit from Dr. Smyth’s “sufficient challenge.” The truth is that life is not risk-free. What I do know, however, is that people have been drinking wine, and eating rice and potatoes for centuries, which puts the “risk” in perspective for me. Am I really going to give up products that provide pleasure and fulfillment in order to avoid some undefinable but seemingly minimal risk? My answer is “No! I am going to continue to eat rice and to enjoy wine!”
Having delved into arsenic, I have, however, made two firm resolutions to reduce risk. First, I will not visit erupting volcanoes. Second, I will very politely decline any invitation to have cocktails with Catherine de Medici.