It's been nearly a year since lawyers accused many of America's biggest wine companies of "secretly poisoning wine consumers" with arsenic concentrations above the levels the Environmental Protection Agency considers safe for drinking water. Now, a scientific analysis of 101 California wines by independent researchers has concluded "that arsenic concentrations in wine consumed by the vast majority of Americans do not pose a biologically significant hazard." They found that wine contributes little of the arsenic people consume in their everyday diets.
"Our results indicate that wine is not a significant source of exposure based on the current consumption rate of wine by most Americans," lead author Dennis Paustenbach told Wine Spectator. His team's research was published in the January issue of the American Journal of Viticulture and Enology (AJVE).
But the plaintiffs in the lawsuit, now known in California's Superior Court in Los Angeles as Doris Charles et. al. vs. The Wine Group, Inc., et. al., beg to differ. Their most recent filing states: "Inorganic arsenic is a known carcinogen and reproductive/development toxin. Arsenic is poison. There is no 'safe' amount of arsenic consumption."
Comparing water to wine
Lawyers for the plaintiffs filed their suit on March 19, 2015, against wine companies TWG, Treasury Wine Estates, Trinchero, Fetzer Vineyards and Bronco. The suit's allegations were based on claims by Beverage Grades, a Denver laboratory, that it found inorganic arsenic in 83 brands, including Franzia, Sutter Home, Beringer, Flipflop, Fetzer, Korbel, Trapiche, Cupcake, Smoking Loon and Charles Shaw, and that the levels were higher than what the EPA allows in drinking water.
"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," lead plaintiff attorney Brian Kabateck said at a press conference that day. "These are very serious allegations that we're raising against the wine industry."
The Wine Institute and the University of California at Davis pushed back quickly, issuing statements saying it was false equivalence to apply water standards to wine. The EPA has never set arsenic standards for wine, but Canada permits up to 100 parts per billion (ppb), twice the highest level that Beverage Grades detected.
Arsenic is an element found in soil and it occurs naturally in fruits and fruit juices. It's found in many food products at low levels. But the plaintiffs have pointed to "inorganic arsenic," which they speculate may have been added to wines by clarifying agents, concentrates, enzymes or other additives.
The recent study in the AJVE, a peer-reviewed journal, was conducted by researchers from the labs Cardno ChemRisk, a health and environmental risk consulting group, and RJ Lee Group, a materials analysis lab. No funding came from the wine industry.
Paustenbach and his colleagues tested the wines named in the suit and randomly purchased California wines. They also estimated the contribution of arsenic in wine to total dietary arsenic consumption and examined whether wine price and arsenic levels correlated.
"Growing practices, enological practices and environmental contamination may contribute to total [arsenic] content in wine, as well as to the differences in [arsenic] content in different types of wine," the authors wrote. They found that the wine with the highest arsenic level contained 68.4 ppb. The overall mean concentration for all wines tested was 12.5 ppb. The wines named in the suit contained a mean of 25.6 ppb compared to 7.42 ppb for the randomly purchased wines. They found that cheaper wines generally contained higher levels.
They concluded that drinking even the wines with higher concentrations would have little effect on one's health. "Intake of [arsenic] from wine represents less than 8.3 percent of a person's total dietary consumption of [arsenic] from food and beverages," the scientists wrote. Furthermore, "comparing [arsenic] concentrations in wine to limits in water does not appropriately characterize the potential health risk associated with wine consumption."
Health risk or labeling law violation?
But the plaintiffs in Charles have shifted the focus of their suit from health risk to labeling laws. They filed an amended complaint on Sept. 16, 2015, that cites California's Safe Drinking Water and Toxic Enforcement Act of 1986, a.k.a. "Prop 65," as the main tenet of their suit.
Prop 65, according to California's Office of Environmental Health Hazard Assessment (OEHHA), "was intended by its authors to protect California citizens and the state's drinking water sources from chemicals known to cause cancer, birth defects or other reproductive harm, and to inform citizens about exposures to such chemicals." The provision now covers all beverages, including alcohol.
In their amended complaint, the plaintiffs argue that by failing to disclose arsenic levels on wine labels, the 83 brands are in violation of Prop 65. They are seeking $2,500 per day for every bottle of wine distributed under those labels—damages that could potentially total hundreds of millions of dollars.
Label wine but not applesauce?
OEHHA regulators have found Prop 65 violations by wineries, but always in relation to failures to disclose the risks of alcohol. The Wine Institute points out that fruits, vegetables, grains and seafood all contain arsenic and none must carry a warning label.
On Dec. 15, the defendants filed a demurrer, a motion to have the case thrown out. The wine labels, they argued, have supplied all the legally required information, using, word for word, the suggested language provided by the OEHHA deemed "clear and reasonable" for alcoholic beverages: "'WARNING: Drinking Distilled Spirits, Beer, Coolers, Wine and Other Alcoholic Beverages May Increase Cancer Risk, and, During Pregnancy, Can Cause Birth Defects.' This warning covers both reproductive toxicity and cancer risks about which plaintiffs complain, and does not require identification of the specific chemicals, such as arsenic, listed under Proposition 65 that are contained in alcoholic beverages."
In fact, such language would be detrimental to the consumer, wrote the defense. "Permitting a court to find that defendants should have provided different or additional warnings for their wines, including a statement about arsenic, would thwart the statute's purpose to ensure one, uniform, clear warning of the health risks." The demand for arsenic disclosure, the defendants wrote, would require legislation for a maximum permissible arsenic level in wine.
Asked if such a level should be established, Paustenbach said, "We don't have an opinion on this matter. For [people] who drink excessive amounts of wine, it is plausible that arsenic content could pose a problem, but the alcohol intake per day would surely pose a much higher risk." The demurrer notes a person would have to drink 13.5 glasses of wine a day since birth to reach the arsenic limits set on drinking water.
In their answer to the demurrer, filed Jan. 29, the plaintiffs fired back that according to Prop 65, a maximum legal arsenic level on wine effectively does exist: It's the same "safe harbor threshold" of 10 ppb over which drinking water would require a warning label. "Defendants' wines contain levels of arsenic that, when consumed in an ordinary and foreseeable manner, deliver per se unsafe levels of arsenic exceeding California's Prop 65 safe harbor threshold."
In other words, given that wine does not have its own threshold, it is incumbent on the winery to demonstrate that wine and water should not be subjected to the same standard. "No reasonable consumer would equate the alcohol warning given by the wine producer with a warning that a poison like arsenic is being added to their wine," the plaintiffs' lawyers wrote.
The court's hearing on the motion to dismiss is scheduled for March 21.