Judge Finds Supplements Are Food Under Prop 65


San Francisco, CA—A flurry of Proposition 65 news surfaced in California during February.

First, was a decision on a 2012 case involving complaints brought by plaintiff Stephen Gillett against Garden of Life Inc., Metagenics Inc., and Nature’s Bounty Inc. (NBTY). Tableted, encapsulated or powdered supplements marketed by these companies were accused of containing lead and not truly being “foods” under California’s Prop 65 rules. This legislation says naturally occurring chemicals in foods do not count as chemical exposure to consumers. Consumer products containing chemicals that exceed levels naturally found in the environment must contain a warning on the label.

Michael McGuffin, president of the American Herbal Products Association (AHPA), testified in the San Francisco Superior Court in August 2012. At time time, he stated he was surprised at this litigation because it is widely recognized that products marketed as supplements are considered foods.

But on February 13 of this year, California Superior Court Judge John E. Munter ruled in favor of the defendants, finding that all the products in question were dietary supplements and should be classified as foods. To this, McGuffin stated, “AHPA is very satisfied with this ruling.”

Meanwhile, on February 4, 2013, a California Assemblyman Member Mike Gatto (D-Los Angeles) proposed new legislation (AB 227) intended to amend Prop 65. The bill includes a way for companies to avoid Proposition 65 liability: those receiving a Prop 65 violation letter would have 14 days to correct the problem and prove it was addressed to a public enforcer. If he or she agrees the violation was resolved, no enforcement action may be brought.

Some feel this Bill could lead to excessive sending of violation letters, and encourage companies not to address violations until a letter is received. AB 227 will have a committee hearing on March 7, 2013.

According to legal expert Sidley Austin, LLP, 330 Prop 65 notice letters were issued from mid-December to mid-February. “That represents a significant increase over notice letters issued during the same 10-week period in the prior three years, a 28%–62% increase,” the firm stated.


Published in WholeFoods Magazine, April 2013 (online 2/21/13)