California Court of Appeals, First District, First Division
[As Modification on April 16, 2015]
Alameda County Superior Court County No. RG11597384, Hon. Steven A. Brick
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Baron & Budd, Laura J. Baughman, Thomas M. Sims; Law Office of April Strauss, April M. Strauss; Environmental Law Foundation, James R. Wheaton and Lowell Chow for Plaintiff and Appellant
Fulbright & Jaworski and Jeffrey B. Margulies for California Grocers Association and California Retailers Association as Amici Curiae on behalf of Plaintiff and Appellant.
David H. Williams; Klamath Environmental Law Center and William Verick for Mateel Environmental Justice Foundation as Amicus Curiae on behalf of Plaintiff and Appellant.
Sally Magnani Assistant Attorney General Susan S. Fiering Harrison Pollak and Elizabeth Rumsey Deputy Attorneys General, for Attorney General Kamala D. Harris as Amicus Curiae on behalf of Plaintiff and Appellant.
Morrison & Foerster, Michele B. Corash, Linda E. Shostak, Robert L. Falk and Miriam A. Vogel for Defendants and Appellants Beech-Nut Nutrition Corporation; Golden Star Trading; Topco Associates LLC; Clement Pappas & Co., Inc.; Cliffstar LLC; Del Monte Foods; Dole Packaged Foods; Gerber Products Company; The Hain Celestial Group, Inc.; Independent Foods LLC; Pacific Coast Producers; Smucker Natural Foods, Inc.; Kedem Foods Products International; Langer Juice Company, Inc.; Seneca Foods Corp.; Tree Top, Inc.; Truitt Bros., Inc.; and Welch’s Foods, Inc., A Cooperative
Rogers Joseph O'Donnell and Renee D. Wasserman for Defendants and Appellants CVS Pharmacy, Inc.; Walgreen Co.; and Save Mart Supermarkets
Reed Smith and Thomas A. Evans for Defendant and Appellant Raley’s
Foley & Lardner and Richard W. Lasater II for Defendant and Appellant Smart & Final, Inc.
Varner & Brandt and Brenden W. Brandt for Defendant and Appellant Stater Bros. Markets.
Nixon Peabody and Lisa A. Cole for Defendant and Appellant The Kroger Co.
O'Melveny & Meyers and Margaret A. Moeser for Defendant and Appellant Trader Joe’s Company.
Bartko, Zankel, Bunzel & Miller, Michael D. Abraham Bartko, Zankel, Tarrant & Miller and Robert H. Bunzel for Defendant and Appellant Wal-Mart Stores, Inc.
Blaxter Law and James T. W. Blaxter for Defendant and Appellant Whole Foods Market California, Inc.
Fulbright & Jaworski and Jeffrey B. Margulies for Defendants and Appellants Lucerne Foods, Inc.; Safeway, Inc.; and Target Corporation.
Beeson Tayer & Bodine and Teague R Paterson for Teamsters California State Council of Cannery & Food Processing Unions; International Brotherhood of Teamsters and Change to Win as Amici Curiae on behalf of Defendants and Appellants
Downey Brand, Dale A. Stern, Steven H. Goldberg and Leila C. Bruderer for California League of Food Processors, California Farm Bureau Federation; Western Growers Association; Northwest Horticultural Council; Agricultural Council of California; California Canning Peach Association; and Grower Shipper Association of Central California as Amici Curiae on behalf of Defendants and Appellants
Hogan Loveils U.S. and Mark C. Goodman for Grocery Manufacturers Association and American Beverage Association as Amici Curiae on behalf of Defendants and Appellants.
Office of the Attorney General Proposition 65 Enforcement Office for Real Party in Interest State of California.
Plaintiff, the Environmental Law Foundation (ELF), filed a complaint against Beech-Nut Nutrition Corporation and various other food manufacturers, distributors, and retailers, seeking enforcement of the provisions of the
Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf. Code, § 25249.5 et seq.). commonly referred to as Proposition 65. ELF alleged certain of defendants’ products contain toxic amounts of lead sufficient to trigger the duty to provide warnings to consumers. After a bench trial, the trial court entered judgment in favor of defendants, concluding they had no duty to warn because they satisfactorily demonstrated that the average consumer’s reasonably anticipated rate of exposure to lead from their products falls below relevant regulatory thresholds. ELF has appealed from the judgment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Proposition 65 Warning Requirements and Lead
“Proposition 65, added by voter initiative in 1986, is a ‘right to know’ statute requiring companies that expose consumers to carcinogens or reproductive toxins to provide a warning, subject to specified defenses. Section 25249.6 states that ‘[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.’ ” (People ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1555 [90 Cal.Rptr.3d 644] (Tri-Union).)
Lead is a toxic metal that, even at low levels, may cause a range of health effects, including behavioral problems and learning disabilities. Young children are most at risk because their brains are developing. According to the United States Food and Drug Administration (FDA), lead is present in small amounts throughout the environment due to its natural occurrence and its release into the environment by human activities. Lead in soil can be deposited on or absorbed by plants, including plants grown for food. Lead that gets in or on the plant cannot always be completely removed by washing or other steps in the processing of the food.
Lead has been identified as a known carcinogen and reproductive toxin under Proposition 65. “The Act is enforced in accordance with regulations promulgated by the Office of Environmental Health Hazard Assessment, the primary agency that implements the Act. [Citations.]” (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 463-464 [110 Cal.Rptr.2d 627].) Under California Code of Regulations, title 27 (Regulations), section 25821, subdivision (a),  “[t]he procedures for calculating the exposure to a chemical
in food start with the quantification of the ‘chemical concentration of a listed chemical for the exposure in question.’ [Citation.] This concentration is called the ‘ “level in question.” ’ [Citation.] The level in question is then multiplied by ‘the reasonably anticipated rate of exposure for an individual’ to the food. [Citation.] This rate of exposure must be ‘based on the pattern and duration of exposure that is relevant to the reproductive effect’ which formed the basis for listing the chemical as causing reproductive toxicity. [Citation.] Thus, an ‘exposure of short duration’ is the appropriate frame of reference for a teratogenic chemical. [Citation.] A teratogen is a chemical that can cause birth defects.” (Tri-Union, supra, 171 Cal.App.4th at p. 1556.)
Section 25249.10, subdivision (c), provides that the warning requirements of section 25249.6 do not apply to an exposure to a listed chemical if “the person responsible can show... that the exposure will have no observable effect assuming exposure at one thousand (1, 000) times the level in question for substances known to the state to cause reproductive toxicity, based on evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for the listing of such chemical....” (Italics added.) This exemption is sometimes referred to as the “safe harbor” defense. (DiPirro v. Bondo Corp. (2007) 153 Cal.App.4th 150, 191 [62 Cal.Rptr.3d 722] (DiPirro).)
“The ‘no observable effect level, ’ or NOEL, is a scientific term denoting the maximum dose level at which a chemical is found to have no observable reproductive effect. [Citation.] The NOEL is determined through scientific inquiry and assessment as detailed in the framework set forth in the regulations. [Citations.] In turn, the NOEL is divided by 1, 000 to arrive at the maximum allowable dose level (MADL), which is the threshold warning level for a listed chemical. [Citations.]” (Tri-Union, supra, 171 Cal.App.4th at p. 1555.) Thus, the MADL (maximum allowable dose level) is set as one one-thousandth of the NOEL (no observable effect level). "At trial, a defendant can secure the protection of the exposure exemption by establishing (1) the NOEL; (2) the level of exposure in question, and ultimately that the level of exposure was 1, 000 times below the NOEL. [Citations.]” (Id. at p. 1556.)
The OEHHA (Office of Environmental Health Hazard Assessment) has already determined the MADL for lead. The regulations set the “safe harbor” warning threshold for carcinogenicity as to lead at 15 micrograms per day. (Regs., § 25705.) The regulatory safe harbor level for reproductive toxicity for lead is 0.5 micrograms per day. (Id., § 25805, subd. (b).) The OEHHA relied on the United States Occupational Safety and Health Administration’s (OSHA) permissible exposure limit (PEL) to establish the reproductive safe harbor level. OSHA multiplied the OSHA PEL of 50 micrograms per cubic meter by 10 cubic meters (the amount OSHA determined workers breathed.. . ."
determined workers breathed over an eight-hour period) to yield a value of 500 micrograms, which it then divided by 1, 000 to arrive at the 0.5 microgram-per-day standard.
II. Procedural History
On September 28, 2011, ELF filed suit against defendants seeking injunctive relief and civil penalties arising from defendants’ alleged knowing and intentional exposure of consumers to lead-containing products without providing clear and reasonable warnings, in violation of Proposition 65. The products in question include foods intended predominantly or exclusively for babies and toddlers, such as baby foods, fruit juice, and packaged peaches, pears, and fruit cups.
Prior to trial, the parties stipulated that ELF would be deemed to have met its burden of proof with respect to its affirmative case. The parties did not dispute that defendants’ products contain small amounts of lead, an element known to the State of California to cause cancer and reproductive harm. They also agreed to exchange test data concerning the concentration of lead measured in each of the products.
In March 2013, the parties submitted trial briefs and their expert witnesses’ direct testimony. This testimony was presented in the form of sworn declarations accompanied by the evidence and literature on which the experts relied. In their brief, defendants raised three arguments as to why no warnings were required for their products: (1) any such warnings are preempted by federal law, (2) the lead in their products is “naturally occurring” and therefore does not constitute an “exposure” under Proposition 65, and (3) the exposures in question fall below the regulatory “safe harbor” level for lead of 0.5 micrograms per day. Live testimony ...