Plaintiffs Up Ante in Arsenic Case

Amended lawsuit demands billions in damages after public and industry organizations declare no danger to public

by Peter Mitham
Diatomaceous earth is scraped off a vacuum filter in a winemaking facility, where the substance is used to remove solids from wine. Photo: Bridget Williams
Los Angeles, Calif.—This spring’s class action against the California wine industry over the presence of arsenic in the alcoholic beverage has been tweaked to seek billions of dollars in civil penalties, among other damages.

Los Angeles attorneys Kabateck Brown Kellner LLP filed an amended complaint in California Superior Court on Sept. 16 alleging that California wineries violated the terms of Proposition 65, the California legislation officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, which seeks to protect consumers from noxious substances (now numbering more than 600) such as wood and leather dust; bracken fern, chloroform and nicotine; alcohol (when consumed in an abusive manner) and arsenic.

Arsenic in both beer and wine is associated with the environment in which the raw materials are grown and in farming and processing supplies. Arsenic is an element of chromium copper arsenate, a preservative of the wooden posts often used in vineyards as well as the diatomaceous earth often used to filter the beverages.

Symptoms of arsenic poisoning include changes to skin pigmentation and various types of lesions.

The lawsuit
While there’s no indication the action’s four plaintiffs—Doris Charles, Alvin Jones, Jason Peltier and Jennifer Peltier—have suffered arsenic poisoning, lab tests of wines from at least 34 vintners detected arsenic levels in some wines that were up to five times the 10 parts per billion (ppb) allowed for drinking water, but no more than half the Canadian standard for arsenic in wine. The U.S. has not set a standard for wine.

The test results prompted a complaint that California wineries engaged in the “negligent, reckless and/or knowing sale of inorganic arsenic-contaminated wines” and in turn failed to warn California consumers of the risks associated with arsenic.

The complaint names vintners including Sutter Home Winery, The Wine Group Inc. and Treasury Wine Estates Americas Co., among others, and cites 200 anonymous defendants pending the naming of other defendants. (The amended complaint adds no new names to the original list of defendants.)

“Just a glass or two of these arsenic-contaminated wines a day over time could result in dangerous arsenic toxicity to the consumer,” the amended complaint states, taking a position refuted by both the Wine Institute on behalf of California wineries as well as the University of California in a fact sheet published following the original complaint.

Documents filed with the court state that the defendants’ wines have been consumed daily since at least January 2011, and that consumption remains ongoing.

What limit acceptable?
However, those same test results—conducted by Beverage Grades, a private lab in Colorado, suggest that most wines meet the standard for drinking water, and all of the wines fell below 50 ppb, as did the beers that were the focus of similar concern in 2013.

Regulations in Canada deem anything up to 100 ppb acceptable, while the threshold in Europe, as set by the International Organisation of Vine and Wine (OIV), is 200 ppb.

U.S. authorities haven’t set a safe threshold for arsenic levels in wine, but the University of California, Davis, published a fact sheet this past March that noted, “Average adult exposure to inorganic (arsenic) through food, according to data from UC Davis, is about 0.05 μg per kg of 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 μ g/kg body weight per day level of concern” set by the Environmental Protection Agency.

Small wonder, then, that “the appropriate public enforcement agencies have failed to commence and diligently prosecute a cause of action” under the state’s Health & Safety Code, according to the September court filing.

Arsenic in other items
Given past responses to concerns over the presence of inorganic arsenic in rice and beer, the inaction suggests that authorities don’t consider wine a health threat—at least when it comes to arsenic.

Indeed, the only foodstuff to exceed government standards is rice, and then only specific kinds of rice.

A regular target of Consumer Reports magazine, rice has variously checked in at 59 to 114 parts per billion. However, California-grown rice tests lower for arsenic than grains from many other growing regions in the United States, not to mention the world.

Yet tests showing levels as high as 200 ppb haven’t prompted the Food and Drug Administration to require warning labels on rice.

“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.

A similar attitude is governing the Wine Institute’s response to the amended complaint, which it described in March as “unfounded.”

“Wines from around the world all contain trace levels of arsenic—as do fruits, vegetables, grains, seafood, juice and other beverages. So there is no case for singling out wine or specific brands,” the institute said in a statement sent to Wines & Vines.

“The fact that the California lawyers who filed the bogus arsenic in wine lawsuit have amended their complaint with a Prop. 65 violation only serves to underscore that financial gain—and not consumer safety—is their motivation. The lawsuit is without merit.”

And the financial damages the lawyers seek are significant, including both “compensatory damages and restitutionary disgorgement” for “unlawful and deceptive conduct” associated with the production and sale of their wines, as well as a civil penalty of $2,500 per day “for every bottle of offending wine manufactured, distributed, marketed and sold without the clear and reasonable warning required by law.”

The extraordinary sum—$2.5 billion per million cases distributed each day—boggles the mind.

In addition to the original demands, the amended complaint adds a request under the state’s Health & Safety Code that the defendants “identify and locate each individual to whom the offending wines were sold in the past four years, and to provide a warning to such person that consumption of the offending wines will expose them to chemicals known to cause cancer.”

The courts have yet to certify the action, allowing it to proceed; however, regardless of the outcome, the presence of arsenic in wine is likely to become better known among consumers, creating one more issue for vintners to be aware of when it comes to labelling and selling their product.

However, the Wine Institute says consumers shouldn’t be ignorant of the dangers of alcohol consumption.

“Wineries have long been in compliance with Prop. 65,” it states. “Warning signs required by the law are displayed at all premises where alcohol beverages are sold in the state.”

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