Lawyers to Fight Dismissal of Arsenic Lawsuit

L.A. court rules that consumers already have warning about possible dangers of wine

by Peter Mitham
A judge dismissed a lawsuit about the potential harm of arsenic in wine after determining there are already sufficient consumer warnings about possible health risks.

Los Angeles, California—A headline-grabbing lawsuit over arsenic in wine has been dismissed on the grounds that consumers already know alcohol is a risk to their health.

A Los Angeles Superior Court decided this week that a claim brought forward on behalf of Doris Charles, Alvin Jones, Jason Peltier and Jennifer Peltier lacked merit. The action named dozens of vintners including Sutter Home Winery, The Wine Group Inc. and Treasury Wine Estates Americas Co., among others, as well as 200 anonymous Does pending the naming of other defendants (see “Lawsuit Threatens to Poison Wineries’ Reputations”).

According to the court’s decision, “Charles alleges the wine producers’ wine contains arsenic. Charles claims Wine Group must warn consumers about the arsenic in its wine. Rather than sue about a personal injury, Charles alleges that the wine producers’ warnings do not satisfy California’s specialized regulatory program under Prop. 65.”

The decision then sets forth what’s required to satisfy the requirements of Proposition 65, noting that the wines at the heart of the lawsuit are sold in California at locations already posting the warning: “Drinking Distilled Spirits, Beer, Coolers, Wine and Other Alcoholic Beverages May Increase Cancer Risk, and, During Pregnancy, Can Cause Birth Defects.”

Since this warning satisfies the legal requirements to let consumers know there’s something about wine that could harm them, while avoiding a notice that’s “visually too congested and cumbersome to read and understand,” the court deemed the action lacked a foundation.

“Given that Wine Group’s conduct falls within a Prop. 65 safe harbor, count one does not state a valid cause of action,” the decision states. “Charles’s other claims fail because they derive from her claim under Proposition 65.”

'We plan to continue fighting' 
The firms that brought the action forward on behalf of the plaintiffs don’t plan to let the matter rest, however. “These warning labels are not a reasonable deterrent for consumers when the toxicity levels in these products are so out of line from the majority of wines on the market,” attorney Brian Kabateck of the Los Angeles firm Kabateck Brown Kellner LLP said in a statement.

Tests of wines from at least 34 vintners detected arsenic levels that were up to five times the 10 parts per billion (ppb) allowed for drinking water, prompting the plaintiffs to claim 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.

Many of the wines were inexpensive and popular varieties such as Moscato, Pinot Grigio and Sauvignon Blanc.

The defendants did not deny that their wines contained inorganic arsenic, maintained co-lead counsel Michael Burg of the Denver, Colorado firm Burg Simpson Eldredge Hersh & Jardine, in the statement released following the decision. “We plan to continue fighting to protect consumers and ensure that they get accurate information about the wine they’re consuming.”

What those next steps might be is another matter.

The plaintiffs have the option to appeal the decision, but the wording of the decision appears to close the door to pursuing the matter on the basis of Proposition 65. So far as ensuring that consumers receive “accurate information about the wine they’re consuming,” the text of the decision suggests that future claims would have to demonstrate that producers intentionally withheld information they should have provided upon request.

One warning sufficient
Citing a previous decision, the court noted, “if the exposed individual desires information about the chemical, it appears preferable that the information be obtained from the party responsible for the exposure after the warning, rather than through the warning.”

In short, since the labels tell consumers that wine consumption constitutes a health risk, it’s up to them to ask questions if they want to know more about the sources and nature of the risk.

Kabateck told Wines & Vines that the ongoing fight against arsenic in wine will focus on determining what, if any, additional warning wines with elevated arsenic content require. He said that ridding wines of arsenic altogether will be the ultimate goal.

“Over 95% of California wines we believe are compliant,” Kabateck said. “We will continue our fight to ultimately remove dangerous arsenic as alleged in our complaint from these inexpensive wines mass-produced for ordinary California wine buyers.”

Posted on 03.26.2016 - 12:28:54 PST
Of course they will. There's no money in dismissal.