American Environmental Safety Institute Files Public Health Lawsuit Against Chocolate Manufacturers.

Business Editors & Legal Writers

LOS ANGELES--(BUSINESS WIRE)--May 8, 2002

Institute Cites Research Showing Dangerous Levels Of Lead and Cadmium

Pose Risk to Children and Adults from Chocolate Products

The American Environmental Safety Institute today filed a lawsuit in Los Angeles County Superior Court against chocolate industry giants Mars Inc., Hershey Foods Corp., Nestle USA Inc., Kraft Foods North America Inc., Rocky Mountain Chocolate Factory Inc. and See's Candies Inc., claiming that these chocolate manufacturers are exposing their customers, especially children, to potentially dangerous levels of toxic lead and cadmium.

Making the announcement at a courthouse news conference, the Institute's president, Deborah A. Sivas, stated that, "Our scientific research clearly shows that chocolate products contain lead and cadmium, heavy metal poisons also known to the State of California's health experts to be hazardous to human health."

These popular chocolate products violate California's Proposition 65, the state's landmark consumer health initiative statute that requires warnings be given to individuals before they are exposed to hazardous and dangerous chemicals.

According to Sivas, "The chocolate manufacturers have neither taken appropriate actions to remove potentially dangerous levels of lead and cadmium from their chocolate products, nor notified consumers of the health risks from toxic lead and cadmium."

The Institute's research was conducted by a well respected scientific laboratory under the supervision of experienced outside legal counsel. "The research demonstrates that the levels of lead and cadmium present in chocolate products pose a clear and present danger to children's health," Sivas noted.

Dr. Marc Lappe, director of the Center for Toxics and Ethics, and an expert on the health effects of toxics on humans, pointed to the fact that chocolate is a long recognized, but under appreciated source of dangerous heavy metals. "The presence of lead and cadmium in chocolate was flagged as a problem by the World Health Organization almost 20 years ago," according to Lappe.

"Lead has been proven to produce insidious damage to health," Lappe said, "because it threatens the normal development of mental faculties and normal social behavior, especially in children." Lappe stressed that even small amounts of lead, previously thought to be safe, are now widely recognized by state and federal health experts to reduce a child's IQ.

Commenting on the lawsuit, Roger Carrick, the Institute's attorney, said, "We will prove in court that the chocolate companies have knowingly and intentionally exposed consumers, especially children, to potentially dangerous levels of lead and cadmium without providing a clear and reasonable warning of the health risks."

What will be the chocolate companies' defense, and will they try to argue that the lead and cadmium levels in chocolate don't exist or have been overstated? "We don't think so," Carrick said. "Anyone can buy the same products, have them tested and they would come up with the same results as our research showed. We believe the chocolate companies have roughly the same data as we do," Carrick concluded.

"The Institute asked the chocolate manufacturers to change their practices," according to Sivas, "but the companies refused to take appropriate or responsible actions to voluntarily lower the dangerous levels of toxics in chocolate, comply with current law or notify consumers of the inherent health risks from their products."

The major chocolate companies named in the lawsuit collectively control more than 80% of the American chocolate product marketplace.

In its lawsuit, the Institute is seeking enforcement of Proposition 65 and California's Unfair Competition Law. It is also seeking an injunction to require warnings on chocolate products before they can be sold; appropriate restitution to persons who purchased these products without receiving these legally mandated warnings; and civil financial penalties to punish these violations. Civil penalties under Proposition 65 can be assessed at up to $2,500 per day, per violation.

"Our children and all consumers deserve better from the chocolate manufacturers," said Sivas. "They can, so they should, get the lead out of their popular chocolate products. That's why we're acting today," Sivas added.

The Institute is calling on consumers everywhere, Sivas noted, to contact their favorite chocolate product manufacturer and pose two questions: (1) "How much lead and cadmium is in each chocolate product made by that company?" and (2) "What is that company doing to reduce those lead and cadmium levels in its products?"

Sivas also announced that the Institute undertook two further actions today:

-- Petitioned the Director of the California Department of Health Services to
adopt regulations under the California Childhood Lead Poisoning Prevention Act
to list any chocolate products containing more than 0.02 parts-per-million of
lead as "environmental lead contamination," and require the chocolate
manufacturers who sell in California to pay the Act's required fees to help
fund the public education effort to fight lead poisoning; and to find that any
chocolate product containing more than 0.02 parts-per-million of lead or
cadmium is "adulterated" pursuant to Health & Safety Code 110545, California's
food safety statute.

-- Petitioned the Administrator of the U.S. Food and Drug Administration to
amend Title 21 of the Code of Federal Regulations, Part 163, "Cacao Products:
Standards of Identity," to establish that no form of cocoa or chocolate product
sold in the United States of America may contain more than 0.02
parts-per-million of lead, and 0.02 parts-per-million of cadmium; and to
instruct the delegates from the United States to seek to amend the "Draft
Standard for Chocolate and Chocolate Products" pending before the Codex
Alimentarius Commission of the World Health Organization to establish maximum
permitted levels of the toxic metals lead and cadmium in cocoa and cocoa
products, such that the resulting finished chocolate products sold at retail
contain no more than: 0.02 parts-per-million of lead and 0.02 parts-per-million
of cadmium.

The American Environmental Safety Institute is a non-profit California corporation founded in 1998 to investigate environmental and public health hazards affecting children and adults.

Based upon its scientific research, both alone and working with other experts, the Institute undertakes appropriate public education and/or legal action before state and federal government administrative agencies and the courts to correct violations of public policy and/or law.

Recent successes include a consent judgment against Big Tobacco limiting the effects of second-hand tobacco smoke on children and adults, and settlement of another Proposition 65 case against the maker of a children's vitamin product, where the Institute achieved a 25% cadmium reduction.

In addition to serving as the Institute's president, Sivas is an attorney and serves as the director of the Earthjustice Environmental Law Clinic and a Lecturer on Law at the Stanford University Law School in Palo Alto, Calif.

Lappe, Ph.D., is director of the Center for Ethics and Toxics, and created and chaired the State of California's first hazard evaluation system that led to the creation of the standards enforced under Proposition 65.

Carrick and Art Angel of The Carrick Law Group, P.C., in Los Angeles, are experienced practitioners in environmental, food, drug, health and related law, and they represent the Institute in this and its other legal matters. Carrick has written two books on Proposition 65 and Angel was one of the lead attorneys in the landmark Karen Silkwood v. Kerr-McGee case regarding the strict liability of nuclear facilities.

Further information regarding today's news conference, the lawsuit or administrative petitions, as well as further background on the Institute, may be obtained by visiting the Institute on the Internet at www.aesi.ws.