One of the most common Prop 65 claims is over lead in fruit and vegetable products, said Sophia Castillo, attorney at Downey Brand, LLP during an SFA regulatory webinar last week. Prop 65 is a law in California that requires all products sold in the state, including food, to have a warning label if use/consumption of the products causes an exposure to chemicals on a list maintained by the state. Lead is just one of 900 chemicals on the list, which also includes other metals such as mercury, cadmium, and arsenic.
According to Castillo, lead can be found in dried fruits and vegetables such as seaweed, pineapple, mango, apricots, mixed fruit, as well as vegetable powders. Lead can also be found in canned fruits and vegetables (including fruits in syrup and juice and pureed baby food) and fresh fruits and vegetables like leafy greens and carrots.
If use or consumption of a food totals 0.5 micrograms of lead per day, the product requires a reproductive harm warning. If it totals 15 micrograms of lead per day, it requires a cancer warning, said Castillo.
Because lead occurs frequently as an element in soil, plants, and water, if producers are able to show that the it naturally occurs in the product (which means it is not generated by any human activity), Castillo noted they aren’t responsible for putting the warning on the products.
However, said Castillo, some public interest groups or “bounty hunter” plaintiffs will continue to seek out products that historically contain lead, test them, and if the products contain over a certain level of lead, a Prop 65 60-Day Notice letter will be sent to the maker company. This letter gives companies 60 days to respond before a lawsuit is filed.
If you’ve received a 60 Day Notice, the first thing you should do is talk to lawyer, said Castillo. After that, consider testing your product and looking at consumption data to understand how consumers are affected by the lead levels. Create a dialogue with the opposing counsel regarding the basis of the claim and evaluate for validity. This leads to many of these claims being settled, according to Castillo.
“Prop 65 is all about risk assessment and deciding what your risk tolerance is,” said Castillo. Using a Prop 65 label on a product does cut off all possibility of claims or litigation. However, if a company doesn’t want to include a label, Castillo recommends conducting an exposure assessment to determine how much lead is in your product and what consumers will be exposed to. In addition, you should determine if changing the cooking or preparation process reduces the level, and if it’s worth it to make those changes, she says.
Related: What You Should Know About Acrylamide; Prop 65 Update: Enhanced Activity During the Pandemic.