Lawsuit Threatens to Poison Wineries' Reputations

Scientists and industry respond to arsenic lawsuit, saying regulations in Europe allow four times the highest amount detected

by Peter Mitham
Attorney Brian Kabateck of the law firm Kabateck Brown Kellner LLP discusses the arsenic lawsuit in Los Angeles. Photo source: Kabateck Brown Kellner LLP
Los Angeles, Calif.—Alopecia, anorexia, ataxia—these are hardly the characteristic physical attributes of those who frequent tasting rooms and wine shows, let alone the 13% of the population marketers term “high-frequency wine consumers” who drink wine several times a week or even daily.

But a lawsuit launched on March 19 in California claims that wine consumers risk chronic poisoning from inorganic arsenic, a heavy metal whose toxic effects include the loss of hair, weight and coordination.

The suit, which seeks certification as a class action, argues that wines from 28 named parties including The Wine Group, Constellation Wines, Trader Joe’s Co., Treasury Wine Estates and Hahn Family Wines contained “unacceptably high levels of inorganic arsenic,” and that its presence in the wines was not disclosed. (Organic arsenic is less harmful, and typically metabolized with no ill effects.)

The plaintiffs include Doris Charles, Alvin Jones, Jason Peltier and Jennifer Peltier, private individuals represented by the Los Angeles law firm of Kabateck Brown Kellner LLP.

The firm didn’t respond to Wines & Vines’ request for comment regarding the motivation of the suit, but court documents don’t indicate any of the plaintiffs have suffered as a result of wine consumption.

Nevertheless, the suit seeks a declaration, “Exposure to inorganic arsenic to consumers when drinking their wines is unlawful,” and various orders requiring the defendants to notify class members of their “unlawful and deceptive conduct,” to advertise the risks of consuming inorganic arsenic on wine labels, and an order enjoining the defendants from marketing, advertising, distributing and selling their products in “the unlawful manner” described in the suit. “Compensatory damages and restitutionary disgorgement” as appropriate are also sought.

Just the latest arsenic scare
The legal action has sparked headlines that echo concerns regarding inorganic arsenic in rice, and similar attention in 2013 to the element’s presence in beer.

Arsenic in both beer and wine can be associated with the environment in which the raw materials were grown—or, more typically, the diatomaceous earth traditionally used to filter the beverages.

Yet the amount of arsenic at issue is minimal.

While tests by Beverage Grades, a third-party lab in Colorado not party to the lawsuit, suggest that many wines meet the standard for drinking water of 10 parts per billion (ppb) in the United States and Canada, a small number posted levels up to five times as high.

Yet all of the wines fell below 50 ppb, as did the beers that were the focus of attention in 2013.

There’s no threshold of tolerance for arsenic in wine in the United States, but regulations in Canada deem anything up to 100 ppb acceptable. Meanwhile, the threshold in Europe, as set by the International Organization of Vine and Wine (OIV), is twice as high at 200 ppb.

A fact sheet issued by the University of California, Davis’ Department of Viticulture and Enology the week after the lawsuit was filed added that published data from Europe recorded arsenic levels no higher than 7.6 ppb, while Liquor Control Board of Ontario tests in Canada also indicate levels below regulatory limits.

The only product to exceed government standards were specific kinds of rice, which has been a regular target of the popular consumer magazine Consumer Reports. Rice has variously checked in at between 59 and 114 parts per billion (though California rice contained lower levels than rice from many other regions in the United States, not to mention internationally; rice imported from abroad often logged as much inorganic arsenic as 200 parts per billion).

But even these levels in rice (which can be reduced by washing the grains prior to cooking) haven’t been identified as a health threat by the U.S. Food and Drug Administration.

“The amount of detectable arsenic is too low in the rice and rice product samples to cause any immediate or short-term adverse health effects,” the Food and Drug Administration reported in 2013 as part of an ongoing effort to reassure consumers in the face of criticism.

Small amounts, little risk
Similarly, a fact sheet posted by UC-Davis Department of Viticulture and Enology on March 25, 2015, noted, “Average adult exposure to inorganic [arsenic] through food, according to data from UC Davis, is about 0.05 μg/kg body weight per day. It would take inordinately high consumption of wine that coincidentally had high levels of arsenic to come close to the 0.3 μg/kg body weight per day level of concern” set by the Environmental Protection Agency.

“For all the data that we have for published amounts of arsenic in wine, no, I don’t think it’s a significant source of arsenic in the diet,” Susan Ebeler, a professor and chemist in the Department of Viticulture and Enology at UC Davis, and part of the university’s interdisciplinary Foods for Health Institute, told Wines & Vines.

However, she said she understands why concern over arsenic in food is a recurring issue.

“They touch on a consumer concern to make sure that the food supply is safe,” she said. “Nobody wants to hear that they’re eating arsenic, right? But we have to assess the risks.…For the average consumer to understand what the real issues are, it’s complicated, so it’s hard to understand what the real risk is.”

Outreach campaigns can help consumers understand the risks.

The USA Rice Federation maintains a specific information page on its website explaining industry practices and presenting medical, scientific and government perspectives on the issue.

Similarly, the San Francisco, Calif.-based Wine Institute has posted its own fact sheet regarding arsenic in wine, describing the potential class action as “unfounded.”

“We are concerned that the irresponsible publicity campaign by the litigating party could scare the public into thinking that wine is not safe to consume, which is patently untrue,” it said in a statement. “We will continue to keep consumers, the media and industry informed.”

Wineries named in the suit such as Hahn Family Wines have deferred to the Wine Institute’s statement on the matter.

Ste. Michelle Wine Estates—whose Chateau Ste. Michelle and Erath brands, along with others from the Northwest, ranked among those least contaminated by arsenic and other heavy metals by Beverage Grades—declined comment on its showing.

“Ste. Michelle is not able to comment directly or indirectly on subjects related to wine industry litigation,” replied Kari Leitch, vice president of communications and corporate affairs, for the Northwest’s single largest vintner.

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