This week, Consumer Advocacy Group (CAG), a non-profit organization that files numerous Proposition 65 (Prop 65) lawsuits each year, issued notices of violation alleging that 15 companies violated California law by selling rice containing arsenic (and in some instances, lead) without a Prop 65 warning.  The notices targeted a wide a range of companies, from small family-owned rice producers, to regional grocery chains and cooperatives. The same organization, CAG, issued a handful of similar notices to other companies in late 2013, also alleging the presence of arsenic in rice products sold in California without a Prop 65 warning.

Proposition 65 is the law that was enacted by California voters in 1986 as the “Safe Drinking Water and Toxic Enforcement Act.”  The law requires a warning on products containing chemicals known to the State of California to cause cancer or reproductive toxicity.  There are over 800 chemicals on the state’s list, including arsenic.  Prop 65 is different than most consumer product safety regulations because it can be enforced by private individuals or organizations.

Arsenic is naturally found in soil and water, as acknowledged by the Federal Food and Drug Administration (FDA), and is absorbed by plants whether they are grown under conventional or organic farming practices.   

The latest round of notices from CAG should not come as a surprise to those in the rice industry.  In September 2013, FDA released information concerning arsenic in rice, including the results of approximately 1,300 samples of rice products examined for the presence of arsenic.  This followed information released by FDA in 2012, involving a smaller sample size.  FDA determined from these samples that rice and rice products contained an average of 0.1 to 7.2 micrograms of inorganic arsenic per serving.    

Notably, however, the levels released by FDA are lower than the Safe Harbor Level for inorganic arsenic as established by the Office of Environmental Health Hazard Assessment (OEHHA) for Prop 65.  The Safe Harbor Level set by OEHHA is 10 micrograms per day.  This suggests that if FDA’s sample data is accurate, the average serving for most rice or rice products would fall within the allowable Safe Harbor Level pursuant to Proposition 65, offering a potential defense to companies named in the recent notices of violation (known as the “Safe Harbor Exception”).     

Further, another Prop 65 defense may be applicable here, known as the “Naturally Occurring defense.”  Under Prop 65, a chemical is “naturally occurring” if it is “a natural constituent of food, or if it is present in food solely as the result of absorption or accumulation of the chemical which is naturally present in the environment in which the food is raised, or grown, or obtained.”  Cal. Code of Regs. tit. 27 § 25501(a)(1).  This defense involves expert analysis and ultimately, testimony, but certainly is one that should be considered and pursued by companies in the rice industry that have received notices of violation from CAG. 

It is likely that more companies in the industry will receive Prop 65 notices of violation.  Indeed, the trend suggests that more food products generally will be involved in Prop 65 actions in 2014.  Accordingly, companies should continue to work to manage Prop 65 exposure risks. 

Melissa Jones is a partner in the Firm’s Sacramento office and provides Proposition 65 defense and compliance services to companies in a wide range of industries.