The 1986 law allows citizens to sue if they can prove companies failed to warn that their products contain chemicals that cause cancer or reproductive toxicity. Critics of the law include the California Chamber of Commerce.
It claims Prop 65 spawned “a multimillion-dollar industry of ‘citizen enforcers’ who often enrich themselves by using the statute’s warning label requirements as an excuse to file 60-day notices and lawsuits to exact settlements.”
California’s Attorney General publishes a list of judgments and settlements every year. Kroger hasn’t been on either list since 2015 and paid less than $30,000 in Prop 65 cases since 2010.
But that could change with a case filed in Los Angeles Superior Court Monday by Ecological Alliance LLC. It’s a for-profit environmental activist group that initiates Prop 65 cases by searching for products with hidden dangers.
Last year, it walked into Kroger-owned stores in Southern California and bought 25 products so they could be tested for lead. Fifteen of the products exceeded Prop 65′s limit of 0.5 micrograms per serving.
“If we can force Kroger to change in a state that is the fifth-largest economy in the world, they’re going to end up changing their product throughout the country,” said Vineet Dubey, an attorney who represents Ecological Alliance. “Kroger needs to do the right thing here and they need to clean up these products, take them off the shelves. They need to institute a program to make sure they’re not selling, especially under their name brand, right, that they control, that contains lead or other heavy metals.”
The 15 products named in the lawsuit include five Simple Truth offerings. Kroger launched the premium organic brand in 2012, cultivating a reputation for quality that helped it reach $3 billion in annual sales within eight years. The lawsuit alleges Simple Truth organic diced peaches and pears had 11.7 micrograms of lead per serving. The product with the highest lead content, a Kroger-branded spinach salad kit, had 70.1 micrograms of lead, or 140 times the California limit.
“We generally don’t comment on litigation,” said Kroger spokeswoman Kristal Howard. “However, we stand behind our products and take pride in providing safe, affordable and nutritious food.”
An independent lab, AGC, detected levels of lead above 0.5 micrograms on 15 Kroger products, according to a lawsuit filed Monday.
Dubey said it was not surprising to him to find lead in Kroger products. He filed a similar lawsuit against Trader Joe’s last November and working on a case against a third grocery chain he declined to name.
“We’ve polluted so much that there’s large pockets of soil all over the world that’s contaminated with lead and other heavy metals,” Dubey said. “And when you grow fruits and you grow vegetables in that soil, they suck and leech the lead out of that soil.”
Dubey said consumers can protect themselves by buying locally sourced, fresh produce. But retailers can also be part of the solution by finding growers with clean soil.
“Retailers need to either spend their own money testing products before they put them on shelves … or they need to have a stringent process in place for their distributors to make sure the products are clean and non-toxic,” Dubey said.
Prop 65 cases often end with settlements because companies find it cheaper than paying for lab tests and toxicologists to prove its products are safe. But Dubey is confident his lab results are accurate and he’s seeking reform over reparations.
“There’s no level of lead that’s healthy,” he said. “And if you’re eating multiple products over time with lead in them, it’s going to stay in your bloodstream and your bones and you’re going to get cancer eventually.”