WHAT IF I PURCHASED A PRODUCT THAT CONTAINS HEAVY METALS?

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Researchers continue to demonstrate a meaningful link between exposure to heavy metals such as lead, arsenic, and cadmium, and cancers and other serious health risks.  That may cause consumers to wonder whether they have recourse if a product they purchased for themselves or their pets is shown to contain those or other heavy metals.

It would be reasonable for consumers to weigh their options given the associated health implications.  Lead exposure may cause lung, kidney, bladder, stomach, and brain cancers.  Likewise, arsenic exposure may cause skin, bladder, lung, kidney, and liver cancers.  It has also been linked to skin lesions, cardiovascular disease, immunological, neurological, reproductive, developmental, and renal problems.  Cadmium exposure may cause prostate, renal, bladder, breast, pancreatic, and endometrial cancers and a host of other renal, developmental, reproductive, immunological, and neurological problems. 

Fortunately, California’s consumers are protected by a robust statutory framework.  One such statute is California’s Legal Remedies Act (the “CLRA”), California Civil Code, §§ 1750-1784.  The CLRA is meant “to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection.”  Relevantly, the CLRA makes the following practices unlawful: “representing that goods . . . have . . . approval, characteristics, ingredients, uses, benefits . . . that they do not have;” “advertising goods or services with intent not to sell them as advertised;” and “representing that the subject of a transaction has been supplied in accordance with a previous representation when it has not.”

 The CLRA is complemented by California’s False Advertising Law (the “FAL”), California Business and Professions Code, § 17500, and its Unfair Competition Law (“UCL”), California Business & Professions Code § 17200.  The FAL prohibits the dissemination of any information “which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.”  And the UCL, a broadly drawn statute, forbids “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.”

In addition to the CLRA, FAL, and UCL, consumers also have a private right of action under California’s Song-Beverly Consumer Warranty Act, California Civil Code §§ 1790-1795.8.  The Song-Beverly Act sets out methods to ensure that buyers of consumer goods obtain the benefit of an express warranty given with the goods, and provides that consumer goods in California also pass with certain implied warranties.  It outlines three relevant warranties: two implied warranties and one express warranty. 

Section 1791.1(a) sets out the “implied warranty of merchantability.”  The implied warranty of merchantability means that consumer goods: “(1) pass without objection in the trade under the contract description; (2) are fit for the ordinary purposes for which such goods are used; (3) are adequately contained, packaged, and labeled; and (4) conform to the promises or affirmations of fact made on the container or label.”

 Section 1791.1(b) sets out the “implied warranty of fitness.”  The implied warranty of fitness means: “(1) that when the retailer, distributor, or manufacturer has reason to know any particular purpose for which the good consumers are required, and further, that the buyer is relying on the skill and judgment of the seller to select and furnish suitable goods, then there is an implied warranty that the goods shall be fit for such purpose and (2) that when there is a sale of an assistive device sold at retail in this state, then there is an implied warranty by the retailer that the device is specifically fit for the particular needs of the buyer.”

Section 1791.2 concerns express warranties.  An express warranty means: “(1) a written statement arising out of a sale to the consumer of a consumer good pursuant to which the manufacturer, distributor, or retailer undertakes to preserve or maintain the utility or performance of the consumer good or provide compensation if there is a failure in utility or performance; or (2) in the event of any sample or model, that the whole of the goods conform to such sample or model.”

The court’s decision in Zeiger v. WellPet LLC, 304 F. Supp. 3d 837 (N.D. Cal. 2018) illustrates how these statutes may operate to protect consumers who purchased a food product containing heavy metals.  In that case, consumers brought a class action suit against WellPet, alleging that certain pet food contained “material and significant levels of arsenic and lead” that is known to be “dangerous for both humans and animals, including dogs.”  The consumers alleged that instead of alerting purchasers of the heavy metals, WellPet made various health promises such as “Unrivaled Quality Standards,” “Optimal Health,” and “natural, safe and pure.”  In response, WellPet raised various arguments about whether the consumer suffered an actual injury.

Ultimately, the court concluded that the consumers sufficiently alleged their claims under the CLRA, FAL, UCL, and Song-Beverly Act.  In doing so, the court determined that the consumers “provided an actionable theory why the Products are unsafe and why the labels are misleading” and that it could not “conclude as a matter of law that defendants’ allegedly misleading and deceptive labeling practices are not unfair, as the harm to the consumer outweighs the utility of this practice.”

Given California’s statutory framework and numerous court decisions like Zeiger, California’s consumers may have recourse if they purchased a product with heavy metals.  Any consumer considering legal recourse should consult a qualified attorney who can evaluate the applicable laws, relevant legal developments, and specific facts of a given case.

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