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Oh No! Not the Wine! Arsenic Contamination Lawsuit in Popular California Wines

Posted in Food Safety on April 8, 2018

Perhaps one of the simplest and greatest pleasures come from arriving home from a long, complicated, and perhaps combative day at work and pouring a long-anticipated glass of wine. On the contrary, perhaps it was a triumphant day with much to celebrate. In any event, could you imagine sipping on a favorite wine that is laced with the contaminant arsenic?

In 2015, a lengthy list of California wineries were named in a complaint that alleged that these wineries sold wine that they knew to be contaminated with unacceptable levels of inorganic arsenic. In the latest disposition of this case, a California judge has dismissed these allegations. The case is on appeal pending review of the plaintiff’s oral arguments that the label wording on these cited wines indicates caution in ingesting the products, although the warning is generic and not specific to certain contaminants.

The Affected Wines Cited in the Complaint

Eighty three wine products were cited in the original complaint as having dangerously high levels of arsenic. These wines came from 28 California wineries and were packaged under 31 brand labels, including merlot, chardonnay, burgundy, and rose.

— Acronym (GR8RW Red Blend).

— Almaden (Heritage White Zinfandel, Heritage Moscato, Heritage Chardonnay, Mountain Burgundy, Mountain Rhine, Mountain Chablis).

— Arrow Creek (Coastal Series Cabernet Sauvignon).

— Bandit (Pinot Grigio, Chardonnay, Cabernet Sauvignon).

— Bay Bridge (Chardonnay).

— Beringer (White Merlot, White Zinfandel, Red Moscato, Refreshingly Sweet Moscato).

— Charles Shaw (White Zinfandel).

— Colores Del Sol (Malbec).

— Glen Ellen by Concannon (Glen Ellen Reserve Pinot Grigio, Glen Ellen Reserve Merlot).

— Concannon (Selected Vineyards Pinot Noir).

— Cook’s (Spumante).

— Corbett Canyon (Pinot Grigio, Cabernet Sauvignon).

— Cupcake (Malbec).

— Fetzer (Moscato, Pinot Grigio).

— Fisheye (Pinot Grigio).

— Flipflop (Pinot Grigio, Moscato, Cabernet Sauvignon).

— Foxhorn (White Zinfandel).

— Franzia (Vintner Select White Grenache, Vintner Select White Zinfandel, Vintner Select White Merlot, Vintner Select Burgundy).

— Hawkstone (Cabernet Sauvignon).

— HRM Rex Goliath (Moscato).

— Korbel (Sweet Rose Sparkling Wine, Extra Dry Sparkling Wine).

— Menage A Trois (Pinot Grigo, Moscato, White Blend, Chardonnay, Rose, Cabernet Sauvignon, California Red Wine).

— Mogen David (Concord, Blackberry Wine).

— Oak Leaf (White Zinfandel).

— Pomelo (Sauvignon Blanc).

— R Collection By Raymond (Chardonnay).

— Richards Wild Irish Rose (Red Wine).

— Seaglass (Sauvignon Blanc).

— Simply Naked (Moscato).

— Smoking Loon (Viognier).

Why Should Consumers be Alarmed?

Arsenic is a chemical element that is found in the Earth’s crust. It is typically found everywhere: in water, air and soil. Arsenic exists in two forms: organic and inorganic. Organic arsenic is found primarily in fish and shellfish. Inorganic arsenic binds with other elements and therefore is more harmful than its organic counterpart. Historically, inorganic arsenic was used in pesticides and paint pigment, but today its usage is restricted. Water sources in some parts of the US have higher naturally-occurring levels of inorganic arsenic than others, so people are more likely to be exposed to inorganic arsenic through drinking water or products that used the water to produce other kinds of beverages. We are exposed on a daily basis to both organic and inorganic arsenic, but the majority of our arsenic exposure comes from the food that we eat. Inorganic arsenic exposure occurs as a result of consuming water.

So, what are “acceptable levels” of arsenic exposure, according to the United States Environmental Protection Agency (EPA). The EPA set an arsenic maximum contaminant level (MCL) for public water supplies at 0.010 mg/L. This is equivalent to 0.010 parts per million (ppm), 10 micrograms/liter (µg/L), or 10 parts per billion (ppb). The EPA also sets the MCL Goal (MCLG) for drinking water. The MCLG is set at a level that uses the best available science to prevent potential health problems. The EPA has set the MCLG for arsenic at zero.

How Arsenic Affects the Body

According to the FDA, unusually large doses of inorganic arsenic can cause symptoms ranging from nausea, vomiting, diarrhea, and sometimes dehydration and shock. Long-term exposure to high levels of inorganic arsenic in drinking water can cause skin disorders and increased risk of diabetes, high blood pressure, and several types of cancer.

The Allegations

Approximately four years ago, an independent testing company sampled over one thousand California wines for the presence of arsenic. Approximately eighty to eight five of the wines tested positive for the presence of unacceptable levels of inorganic arsenic. Although the FDA has not set a mandated limit as to what unacceptable levels are; in part, the lawsuit states that consumers should be able to determine, through proper wine labeling, whether they should ingest the wine. In other words, specific wording should appear on the bottles or boxes that warn of unacceptable levels of certain contaminants, including arsenic: sort of a “buyer beware” admonition.

In speaking with one of the attorneys for the plaintiffs, Mr. Brian Kabateck, the original complaint was filed shortly after the initial discovery of what was perceived to be unacceptable levels of inorganic arsenic in the aforementioned California wines. The complaint names three principal plaintiffs as well as others who may have been affected in the multi-action lawsuit. Further, the complaint states that defendant wineries produced their wine products with knowledge of the dangerous amounts of inorganic arsenic they contained, citing that “[in some cases] levels detected were over 500% or more than what is acceptable for daily intake. Put differently, just a glass of two of these wines a day could over time result in dangerous arsenic toxicity to the consumer.” However, the complaint was dismissed by the presiding judge, citing for the defendants that the wine labels were subject to a complicated loophole known as the “wording statute”. Essentially, it was upheld that the defendant’s claim that the existing warning on wine bottles and boxed wines were sufficient as they contain the wording “may cause other health problems.”

Many of the aforementioned wines are inexpensive and produced in an equally inexpensive fashion, lending the wines subject to expedient processing. In many instances, production is rushed, inclusive of additional additives to the wines that often contain the inorganic arsenic.

This case is currently on appeal with a judgement expected in the next several months. MakeFoodSafe will continue to monitor the progress of this case.

By: Kerry Bazany, Contributing Writer (Non-Lawyer)