Environmentalists File Prop 65 Suit Against Chocolate Manufacturers

PALO ALTO, Calif.--People have worried about the weight and pimples associated with eating chocolate, but now a public interest group is saying that the levels of lead and cadmium found in chocolate products may cause cancer and/or reproductive problems. The American Environmental Safety Institute (AESI), a nonprofit corporation that analyzes food toxicity, filed an action in the Los Angeles Superior Court May 8 asking candy manufacturers Hershey Foods Corp., Kraft Foods North America Inc., Mars Inc., Nestle USA Inc., Rocky Mountain Chocolate Factory Inc. and See's Candies Inc. to label products as containing these metals. The suits also ask that the companies pay restitution to anyone purchasing these products without warnings, as well as pay civil penalties of up to $2,500 per day, per violation. According to AESI (www.aesi.ws), the request falls under Proposition 65, a California initiative approved in 1986 listing chemicals known to cause cancer, birth defects or reproductive problems.

In addition, AESI filled concurrent petitions with the U.S. Food and Drug Administration (FDA) and the California Department of Health Services (CDHS). In the FDA petition, AESI requested that in part of Title 21 of the Code of Federal Regulations, "Cocoa Products: Standards of Identity," be amended to establish that no form of cocoa or chocolate product sold in the United States can contain more than .02 parts per million (ppm) of lead and .02 ppm cadmium. In the petition to CDHS, AESI asked the department to adopt regulations under the California Childhood Lead Poisoning Prevention Act to list chocolate products containing more than .02 ppm of lead as "environmental lead contamination."

According to AESI, the lead in chocolate products may be the result of "sloppy manufacturing practices and poor raw materials purchasing practices," in which lead and cadmium may evolve from using pesticides and fertilizers on cocoa bean crops. Also, the alkaline solution (e.g., potassium carbonate) that is used to darken the color of chocolate, may have up to 5 ppm of lead. Interestingly, several organic chocolate products that do not use pesticides or alkaline were found to have lower levels than their nonorganic counterparts in lead and cadmium.

AESI suggests that manufacturers should be more vigilant in finding cocoa beans with the least amount of lead and cadmium; should remove cocoa bean husks and inner skins that contain more lead; and should screen the ingredients that are used in chocolate products. "The chocolate companies are highly profitable, major corporations that have deep resources for research and development," AESI said. "They market heavily to children, [and] they owe it to those children, our children, to make their chocolate products as safe as possible."

The Web site ChocolateandCocoa.org--sponsored by the Chocolate Manufacturers Association, the American Cocoa Research Institute, the World Cocoa Foundation and the Cocoa Merchants--reported that most of the naturally occurring lead is in the shell of the cocoa bean, which is removed during processing, and pesticides used to treat cocoa trees are infrequently applied and do not add lead to the beans used in chocolate. "The industry has always made every effort to provide a very safe product, and we continue to do so," the organization stated.

The chocolate manufacturers refuted the claims made by AESI, citing they were baseless and "a brazen attempt to extort responsible businesses." In fact, California Attorney General Bill Lockyear has already ruled on these allegations when they were brought to his attention by AESI in 2001. In a Sept. 28, 2001, letter sent to AESI and the counsel for the chocolate manufacturers in question, Lockyer stated that based on the information gathered from the state's investigation, the lead present in chocolate products is not due to known human activity. He also noted that in recent lead levels proposed by the Committee on Cocoa Products and Chocolate of the Codex Alimentarius Commission of the World Health Organization, the standard was set at 1 ppm for cocoa powder, 1 ppm for chocolate liquor and 0.1 ppm for cocoa butter. And while cadmium is a listed carcinogen, Lockyer reported it posed no significant risk for cancer when ingested.

"Lockyer already has reviewed the allegations and determined that the lawsuit [at that time] `lacks merit,'" said Michele Corash, counsel for the companies named in the lawsuit. She added that the minute traces of metals such as lead pose no risk to consumers. "This lawsuit is simply a shameless attempt to exploit a well-intentioned law for financial gain."

Lockyer left no doubt as to his views of the suit when he concluded his letter. "It is unusual for the attorney general to publicly state that he has reviewed a matter under Proposition 65 and determined that it is not appropriate to proceed on the claim. Nonetheless, because these products are consumed by so many Californians, we think it is important for the public to be aware that the attorney general's decision not to commence a civil action in this matter is based on a conclusion that the action would lack merit."

AESI continues to stand behind its beliefs. "We don't know how the attorney general conducted his investigation last fall. [W]e urge him to revisit his initial conclusions in light of the extensive new research evidence developed by the institute as to the human activity sources of most environmental lead."