December 22, 2011
A little less than a month ago, Consumer Reports released a study that found levels of arsenic in apple and grape juice were higher than the Food and Drug Administration’s allowable limits for drinking water.
The specific brands that had at least one sample in the 88 sample study that exceeded that threshold included Apple & Eve, Great Value (Wal-Mart’s house brand), Mott’s, Walgreens, and Welch’s.
The FDA doesn’t regulate arsenic levels in juice, though (only in water), so no regulatory action will be taken (at least not yet).
However, the report did create some public uproar, which led to at least one lawsuit being filed (so far).
As you would expect, the named defendant in this lawsuit is one of the juice makers listed above – Walgreens.
Hot Doc: Boysen v. Walgreen Co.
Perhaps unexpectedly, though, the suit isn’t claiming any specific personal injuries from the arsenic as damages, nor is it relying on any kind of personal injury legal theory.
Instead, the complaint lists two fraud-related claims (deceptive business practices and false/misleading advertising) and a Uniform Commercial Code (UCC) claim of breach of implied warranty.
If you think about it, though, this makes sense: most actual physical injuries from ingesting small amounts of arsenic over time are likely not going to manifest until much later in life, and it is very hard to trace the causation of those injuries back to the arsenic anyhow.
The common denominator in all three of these claims is the assumption that low levels of arsenic and lead (the lawsuit also alleges that the juices are contaminated with lead) in juice is harmful.
Specifically, if the contaminated juices are unsafe, they therefore are not fit for human consumption (breach of implied warranty), and a reasonable parent wouldn’t have purchased the juice for her kids if the contamination had been disclosed on the label.
Although it may seem like a foregone conclusion to the public that apple and grape juice containing arsenic at higher levels than the FDA allows in drinking water is harmful, it apparently isn’t to the FDA and other experts – at least if the juice is consumed on a limited basis.
As for consuming such juice over longer periods of time – and allowing for arsenic and lead to build up in one’s body – the jury is still out on that one, evidently.
Could this uncertainty be the savior for Walgreens and the other inevitable defendants like it?
As anyone familiar with the extensive litigation surrounding silicone breast implants* can tell you, what the scientific community says and what a jury or a court conclude can be vastly different.
In addition, there is evidence linking arsenic and lead as carcinogens, whereas, there was virtually none connecting silicone breast implants to any autoimmune disease.
True, the arsenic and lead allegedly present in these juices are in very small amounts, but with the chemicals’ current standing with the public (i.e. most people equating arsenic and lead to poison), the deck may be stacked against juice makers at the outset.
Moreover, this and any subsequent lawsuits will only prolong bad publicity initially started by Consumer Reports’ original study.
As such, it would be in the best interests of those named juice manufacturers (not to mention their juices’ consumers) to do what it takes to resolve the lead and arsenic problem quickly, and dispatching with this and future lawsuits swiftly and quietly.
*The 1980s and 1990s saw a wave of lawsuits alleging autoimmune disorders and other serious injuries caused by silicone breasts implants. Despite study after study confirming the safety of silicone implants, implant manufacturers still lost around 20% of the cases, and the FDA scaled back most of its approval for the devices until further study. It only recently determined the relative safety of the devices.