One thing that is certain the food industry is that, with each passing year, the rules under which food companies operate become more and more broad and increasingly stringent. As we roll into 2023, we are beginning to hear whispers of FDA considering new rules aimed at establishing thresholds for heavy metals (such as lead and cadmium) in foods marketed for babies and children. Eventually, as new heavy metal guidance, rules, and expectations are published, the new standards will likely begin to extend to other foods marketed to the broader general population, including adults.

In California, the regulators have had a head start, with Proposition 65. If you’re not familiar with Prop 65, it’s a law which forces companies to provide warnings on their product packaging if their product will expose California users to one or more of nearly 1,000 chemicals or elements on the Prop 65 list (including lead and cadmium) which have been deemed by the State of California to cause cancer or reproductive harm. If a food company fails to provide the necessary warnings where required, a lawsuit can be filed against the company seeking civil penalties and attorneys’ fees (to compensate the armies of plaintiff lawyers actually prosecuting the claims on behalf of California citizens). I often refer to the law, not as Proposition 65, but as the California Plaintiff Lawyer Unemployment Act.

Over the years, many food companies have responded to Proposition 65 claims by: (1) placing the required Prop 65 warning on the food packaging; (2) reformulating the products to eliminate (or reduce the presence of) any offending chemicals or elements; or (3) withdrawing their products from the California market entirely (to include both retail and internet sales based upon zip codes). While these strategies have been effective in California, food companies have not had to worry about Prop 65 (or its stringent standards) in the remaining 49 states because Proposition 65 is a California law which extends only to California’s borders.

Until now.

Within the last month, two class action lawsuits were filed against The Hershey Company and Trader Joe’s. The class actions, filed in federal court in New York, allege that various dark chocolate products sold by the companies contain unsafe levels of lead and cadmium. Because the companies where either aware, or should have been aware, of the presence of the heavy metals, the plaintiff lawyers allege, the companies should also have disclosed the presence of these heavy metals on the product labeling.

While these lawsuits are not being brought under Proposition 65, per se, they do make reference to the California laws and standards to, presumably, establish the merits of the argument that: (1) the presence of heavy metals in a food product (above the thresholds established in California) can cause harm to consumers outside of California; and (2) as a result, the presence of heavy metals in any food product (that exceeds the thresholds established in California) should be disclosed to consumers through on-package warnings. Doing so, the plaintiff class action lawyers would argue, would give all consumers throughout the US the same protections afforded to consumers living in the state of California.

So, once again, heavy metals got me banging my head. Only a few short weeks ago, we all believed that Proposition 65 was a problem limited to the West Coast. If these new class action lawsuits have any success, however, the Proposition 65 standards now applicable only in California (to include nearly 1,000 chemicals) will likely spill into the rest of the nation. And, what once was a California-centric headache, could very well (and very quickly) become a massive head-banging migraine for us all.

Heavy metals got me banging my head

Join for free* to continue reading.