Attorney Takes on Chocolate Makers Over Toxin Traces

By AMANDA BRONSTAD
Staff Reporter

The attorney who sued the nation's top chocolate manufacturers earlier this year claiming their confections pose a potential health risk is leaving a bitter taste among state regulators.

Roger Carrick filed a petition on Aug. 14 requesting that the California Environmental Protection Agency's Office of Environmental Health Hazard Assessment (OEHHA) make more stringent its allowable levels of cadmium, a known toxin.

Carrick made headlines in May when he filed suit against the nation's top chocolate makers, including Hershey Foods Corp. and Mars Inc., claiming their products expose consumers to unhealthy amounts of lead and cadmium. That case is pending.

According to Carrick, OEHHA's cadmium regulation, which became effective Aug. 19, is based on inferior scientific studies.

The suit was filed in L.A. County Superior Court on behalf of two California groups, The American Environmental Safety Institute and The Center for Ethics and Toxics.

"The Institute has been on record since the beginning as saying the (state) government's initial proposal was wrong," Carrick said. In the suit, Carrick adds: "If the cadmium regulation becomes effective as adopted by OEHHA, residents of California will be exposed to over 17 times the actual safe level of cadmium."

Cadmium is a metal that may cause choking, nausea, vomiting, diarrhea or death if it is ingested, according to the Material Safety Data Sheet, a government-mandated safety tip sheet for hazardous chemicals. Naturally occurring in groundwater and in some vegetables, it is also used in metal plating, according to the Environmental Protection Agency.

The EPA began regulating cadmium in 1992 and considers a safe level of cadmium to be less than five parts per billion.

Carrick's claims are based on the state's Safe Drinking Water and Toxic Enforcement Act, commonly referred to as Proposition 65.

Prop 65, passed in 1986, was designed to inform consumers of the health risks caused by various carcinogens and toxins. Where an unhealthy amount of these chemicals is present, a business must post warnings notifying consumers of the potential health risks.

Private attorneys often enforce Prop 65, which now covers about 750 chemicals. For many businesses, the costs and complexities of defending themselves against Prop 65 suits have become unmanageable, said Allan Hirsch, spokesman for OEHHA.

One attorney who represents several businesses accused of Prop 65 violations said the dispute over allowable levels of cadmium is over two very conservative numbers and has a negligible impact.

"The person who's filing this challenge to the state has a track record of filing Prop 65 enforcement cases against businesses," said Robert Falk, an attorney at Morrison & Foerster LLP in San Francisco. "He's trying to get leverage for his lawsuit."

To ease the burden on businesses having to define risk levels, the state began to create "safe harbor numbers" that clarify the amount of a Prop 65 chemical considered safe, he said.

The safe harbor numbers also curb unnecessary warnings posted by businesses that opt to settle with Prop 65 attorneys simply to avoid lengthy and expensive trials, Hirsch said.

Last year, OEHHA proposed a cadmium safe harbor number of 4.1 micrograms per day. Carrick claims OEHHA should be using a separate and more accurate study that calculates the safe level of cadmium at .232 micrograms per day.

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