California law firm may benefit if it wins suit against Boise baby-food maker over lead

A law firm that has collected millions of dollars by suing businesses for violating California’s toxin-warning law has turned its eyes toward an Idaho company in a lawsuit that says a Boise-based children’s food manufacturer permits dangerous levels of lead in products for toddlers.

The lawsuit, filed in California, asserts that some Happy Tot-brand products produced by Happy Family Organics have high levels of lead, and that the company “know(s) and intend(s) that their products expose consumers” to lead.

That is a violation of the California law, known as Proposition 65, according to Custodio & Dubey LLP, the law firm representing Ecological Alliance, a business that sued Nurture Inc., which does business as Happy Family Organics and Happy Family Brands.

Nurture Inc. did not respond to an Idaho Statesman request for comment.

Ecological Alliance also names two major retailers of the products, Whole Foods and Target, in its lawsuit. Both companies did not respond to requests from the Statesman for comment.

Prop 65: Lawyers collect millions in cases like Happy Family

California voters passed Proposition 65 in 1986 to require disclosure of cancer-causing or other hazardous substances in products. The law leaves enforcement largely to people and companies who can sue in state court. They keep one-fourth of any judgment or settlement amounts they win and receive reimbursement for their legal fees.

Ecological Alliance is one of the biggest litigants in that business in recent years. It settled 116 Prop 65 cases in 2020 alone, the state’s attorney general says, over toxins in products such as clutch purses sold at Rite Aid, wall decals and wallets sold at 99 Cents Only Stores, and spare-tire tool kits manufactured by General Motors.

In the settlements or consent decrees, which frequently don’t include admissions of having violated Proposition 65, corporations often agree to pay a penalty and reformulate their products or add warning labels to them. Since 2018, Ecological Alliance has pulled in the most of any California plaintiff in out-of-court settlement fees, according to data from the attorney general’s office. The company won $1.43 million in settlements in 2018, $1.87 million in 2019 and $1.64 million in 2020.

In those cases, Ecological Alliance’s attorneys are often responsible for delivering 75% of civil penalties to California’s environmental regulator, according to copies of several settlements reviewed by the Statesman.

But the civil penalties are usually negligible. Most of a settlement goes to legal fees and costs.

In the agreement with Rite Aid settled in January 2020 over clutch purses that contained DBP, a chemical that has been linked to birth defects, the pharmacy agreed to add a warning label to future purses it sold in California and to pay Dubey’s firm $18,000 for its legal fees. The civil penalty? $300, of which $225 went to the state of California. The remaining $75 went to Ecological Alliance.

Between 2018 and 2020, over 95% of the settlement dollars Ecological Alliance won went to its lawyers.

Plaintiff is ‘environmental awareness’ business

Vineet Dubey, a cofounding parter of Custodio & Dubey, represents Ecological Alliance in the Happy Family case. Dubey told the Statesman that Ecological Alliance tests commercial products for toxins.

He said his client frequently approaches companies with their test results, and that sometimes corporations voluntarily choose to address the tests’ findings. If they don’t, Dubey said, Ecological Alliance proceeds with litigation.

“In this case, those notices were sent and we did not receive a response, so we were forced to continue and file these lawsuits,” Dubey said by phone.

Ecological Alliance, based in Laguna Hills, registered as a limited liability corporation in 2015, according to the California Secretary of State’s website. It is described in a filing as an “environmental awareness” business, and on its filings the only listed “managing member” of the company is a Harmony Welsh, of Laguna Hills.

In the five years that he has worked with the company, Dubey said, he has filed 20 to 25 lawsuits on its behalf.

As a remedy for the Happy Family case, the lawsuit requests that the products be removed from shelves; that a lead-warning label be added to the Happy Tot products sold in California, as is required under Proposition 65 for food products that have more than 0.5 micrograms of lead; and that the company pay civil penalties that could be “potentially millions of dollars,” Dubey said.

He added that, in previous cases, companies with lead levels higher than the maximum threshold rarely add labels to their products but instead move to reformulate the products.

“When we’re talking about lead in food, companies almost never want to go that route,” Dubey said. “I won’t buy something for my kids if I find a label that there’s lead in this product.”

Happy Family’s role in Boise

Jessica Rolph, an entrepreneur, co-founded Happy Family Brands in 2006. In 2013, the company sold for $230 million to Danone, a $46.4 billion French food conglomerate that is the maker of Dannon yogurt. Happy Family has offices in New York and at 251 E. Front St. in Boise.

Rolph worked in a leadership role at the brand until 2017, and she was a member of their board until 2020. She declined to comment.

A 2013 Statesman profile of the company reported that its products were developed and tested in Boise but produced at plants in the Midwest, with raw materials and quality control overseen by Happy Family.

Ecological Alliance alleges that tests it conducted found 6.23 micrograms of lead in one serving of Happy Tot cheese and spinach raviolis, which are marketed to toddlers. The lawsuit states this level is “over 12 times greater than the 0.5 micrograms allowed per day” in California. In a serving of Happy Tot apple spinach and oat bars, the plaintiffs found 0.54 micrograms, which is also over the state’s limit.

Luke Montrose, an environmental toxicologist at Boise State University, told the Statesman that while lead exposure can harm a person of any age, it is especially dangerous to children.

“The major issue with lead is that it can disrupt the normal development of a child’s brain and central nervous system,” he said. “The genesis of these organ systems” occurs primarily in young children, which means “there’s just more opportunity for error or disruption.”

The FDA recommends that children consume no more than 3 micrograms of lead per day. The FDA notes it is not possible to completely eradicate lead from the food supply because of its presence in the environment.

Some environmental groups argue that the threshold should be lower. California’s lead limits are considerably lower than the federal recommendations.

Idaho, unlike California, does not have a state-determined lead threshold but instead follows FDA recommendations, Anna McGeehan, a spokesperson for the state’s Department of Environmental Quality, told the Statesman by email.

The FDA limits lead in bottled water and recommends limits for juice and candy, but not for other foods consumed by children.

In April, the FDA announced a plan to combat heavy metals in baby food by setting new recommended standards in the coming years. The agency plans to finalize the standards by 2024.

No ‘safe’ level of lead exposure

Montrose told the Statesman that there is no “safe” level of lead exposure.

“As you go down in exposure, you do go down in risk for disease or adverse outcome, but at no time, no matter how low you go, will you ever completely remove the risk,” he said.

Montrose added that differences between state and federal requirements amount to different conclusions about “acceptable” levels of risk.

California is “essentially just saying their level of acceptable risk is lower than” the federal government’s, he said.

Lead, which occurs naturally on earth, can get into the food supply through a number of different channels, Montrose said. Burning gasoline that contains lead, for instance, can cause lead to concentrate in the air, which can then settle into the soil. Lead can also accumulate in the food chain, or be introduced during manufacturing or through food-storage containers that contain lead.

“Quickly identifying the source may be difficult,” Montrose said, “because there are so many on-ramps.”

Ecological Alliance declined a request to speak with the Statesman, according to Dubey. He said by email that “they are doing what they do to protect CA consumers from toxic products, not for the press coverage.”

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