A class action lawsuit alleging that some inexpensive California wines contain dangerously high levels of inorganic arsenic was filed in Los Angeles County Superior Court on March 19.
The lawsuit names Trader Joe’s and three other retailers which sell several of the wines that were tested for arsenic. The complaint also names 28 California wineries, including Fetzer, Beringer, and Sutter Home.
The lawsuit, Charles vs. The Wine Group Inc., et al claims the “Defendants have knowingly and recklessly engaged in a consistent pattern and practice of selling arsenic-contaminated wine to California consumers, without disclosing either the existence of the toxin in their product, or the health risks it posed, thereby secretly poisoning wine consumers in direct violation of California law.”
The complaint requests a jury trial.
The plaintiffs argue that “responsible” California wineries “limit the amount of inorganic arsenic present in their wines to ‘trace’ levels considered acceptable (if not completely safe) for human consumption.”
The complaint alleges “three separate testing laboratories skilled in arsenic testing have now independently confirmed that several California wineries (including those named as Defendants in this action) produce and market wines that contain dangerously high levels of inorganic arsenic, in some cases up to 500% or more than what is considered the maximum acceptable safe daily intake limit.”
The U.S. Environmental Protection Agency (EPA) is the federal agency that sets limits on how much arsenic – a Proposition 65 carcinogen – is legally allowed in drinking water. However, at present there are no laws or regulations that set limits on the amount of arsenic allowed in wine.
In a statement appearing in Wine Spectator magazine, Vice President Nancy Light of San Francisco-based Wine Institute said “There are no [EPA] limits for other foods and beverages — including wine —because they’re not consumed at the same level as water and not deemed to be a risk. There is no research that shows that the amount of arsenic in wine poses any health risks to consumers.”
The Wine Institute issued a formal statement that explains arsenic is “prevalent in the natural environment in air, soil and water, and in food.”
The trade association in its statement notes the U.S. Tax and Trade Bureau, a regulatory organization that monitors wine and other alcohol, also checks arsenic levels as part of its testing program and wine exports from California tested by the European Union and other countries actually found levels of arsenic for wine below the required limits of 100 parts per billion (ppb) or higher. The U.S. EPA standard for arsenic in drinking water is 10 ppb.
The Wine Institute said it is “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. We will continue to keep consumers, the media and industry informed.”
Beverage Grades, a privately-owned laboratory based in Denver, Colorado which tested the wine, stated that it found arsenic levels well above federal limits in some of the lower priced California samples. The wines included Franzia White Grenache, Trader Joe’s Two-Buck Chuck White Zinfandel, and Menage a Trois Moscato, among others.
Some of the California winery representatives that were named in the lawsuit told Wine Spectator that Kevin Hicks, who founded Beverage Grades, had not contacted them before the complaint was filed, and said that his company sent press releases to some wine vendors the day the complaint was filed advertising Beverage Grades’ testing services.
Hicks told CBS News that his lab tested over 1,300 bottles of wine and found inorganic arsenic in 83 brands of various types and vintages, which included Franzia, Sutter Home, Concannon, Wine Cube, Beringer, Flipflop, Fetzer, Korbel, Almaden, Trapiche, Cupcake, Smoking Loon and Charles Shaw.
CBS also reported that it had the test results individually checked by Allan Smith, a University of California-Berkeley epidemiologist, who confirmed several of the levels that Hicks found. Smith said that over time, 50 ppb of arsenic, the highest level found in one of the bottles Hicks tested, can be deadly.
“Arsenic is highly toxic; it’s astonishing,” Smith said. “It has as many effects inside the body as cigarette smoking does.”
Nearly all of the wines that Hicks tested were priced at $10 or less, and most were priced at less than $5, said Brian Kabateck, one of the attorneys that represents the plaintiffs at a press conference in Los Angeles after the lawsuit was filed.
“The consumer may be spending less than $5 for a bottle of wine, but they may be paying with their health in the long run,” Kabateck said. “These are very serious allegations that we’re raising against the wine industry.”
Kabateck said the goal of the complaint is to get wineries to reformulate these wines, have money returned to all who paid for them, and to “clean up the wine industry in California.”
The lawsuit comes on the heels of a California Department of Toxic Substance Control complaint against wine bottle make Gallo Glass that alleges the company’s wine bottles contain inorganic arsenic and other toxic chemicals. However it’s unclear whether there is any connection between the origin of wine bottles and the presence of arsenic.
Although the complaint is based on exposures to a Proposition 65 chemical, it does not allege the defendants violated Proposition 65. Instead it alleges the wineries and retailers violated California’s Consumer Legal Remedies Act (Civil Code section 17500, engaged in unfair business practices (Business & Professions Code section 17200), misleading and deceptive advertising (Business & Professions Code section 17500) and unjust enrichment.
The lawsuit also alleges the wineries and retailers breached the implied warranty of merchantability by selling wines “marketed and sold as compliant with California state disclosure requirements and free of toxins at any level for which labeling and disclosure were required.”
Kabateck Brown Keller also filed a 60-day notice of violation on the defendants on behalf of Doris Charles, Alvin Jones, Jason Peltier and Jennifer Peltier on the same day the firm filed its class action lawsuit.
Since 2014, 37 notices of violation, many of which name several alleged violators, have been served on California wineries. Most of the notices allege failures to warn about alcoholic beverages. This is the first to allege California wines contain arsenic.
In addition to Kabateck Brown Kellner, LLP of Los Angeles, the Plaintiffs are represented by Burg Simpson Eldredge Hersh & Jardine, P.C., of Englewood, CO, and Levin Papantonio Thomas Mitchell Rafferty & Proctor, P.A., of Pensacola, FL.
The case cited by this article is: Charles v. The Wine Group, Inc. (Los Angeles Sup. Ct. Case No. BC576061).