Winemakers Sued for Arsenic in Their Wines--Plaintiff's Attorney Brian Kabateck Explains the Lawsuit

Arsenic in apple juice and rice has been the subject of warnings to consumers. Now, a proposed class action lawsuit has been filed in California alleging that some top-selling wines have high levels of arsenic. In this report, Brian Kabateck, attorney for the plaintiffs, explains the litigation.

Brian Kabateck

Brian Kabateck

The lawsuit claims that some wines have four or five times the amount of arsenic allowed by the FDA in drinking water (10 parts per billion). Kabateck explains that Kevin Hicks, who was in the alcoholic beverage industry for fifteen years, left to start a company specializing in testing beverages. One of the tests involved wine, a beverage that is not heavily regulated. Tests on 1,308 bottles of wine revealed eighty bottles that had excessive amounts of arsenic, based on the FDA standard for drinking water. Kabateck says that, learning of this, his firm had additional tests performed, and afterward, the lawsuit was filed.

Kabateck notes that the higher levels of arsenic were mostly found in wines at the low end of the price scale. The highest arsenic levels were usually in blush wines (like a white zinfandel) or white wines (like a chardonnay).

Kabateck says that it is unclear how the arsenic finds its way into the wines. However, the tests show that the problem arsenic is inorganic in nature. Kabateck points out that organic arsenic is the substance found in apple juice, rice, and other foods. “It’s all around us.” Kabateck suggests that arsenic could be a clarifying agent, or something used to make wine sparkle. “We just don’t know.”

The greater concentration of arsenic in newer wines might suggest that aging helps to remove the element, but that is speculation. Kabateck says that one objective of the lawsuit is to bring the wine industry into the public eye so that people will know what they are drinking when they buy wine.

The U.S. standard (10 ppb) is considerably lower than the Canadian standard, for example (200 ppb). As to possible health problems caused by arsenic, Kabateck says that the medical literature links arsenic to cancer. It can cause respiratory problems and diabetes, among other things. There is also a question of how much arsenic any individual can consume safely over a lifetime.

Kabateck hopes that some winemakers will want to step forward early and respond positively to resolving the problem. The lawsuit is asking for recalls of some of the wines and refunds to consumers who bought those wines.

Brian S. Kabateck is the Founding and Managing Partner of Kabateck Brown Kellner, LLP in Los Angeles, California. He is a nationally recognized and respected consumer attorney and a preeminent leader in the fight to ensure access to the justice system.  He is a powerful advocate in the courtroom and at the California State Capitol for consumers’ rights and protections. The Legal Broadcast Network is a featured network of the Sequence Media Group.

DIRECTV Charged by FTC with Deceptive Adverting; Telecommunications Lawyer David Klein Explains

The FTC has filed a complaint against DIRECTV accusing the company of deceptively advertising a year-long programming package. Telecommunications lawyer David Klein discusses the complaint and the actions that brought it about in this report.

David Klein

David Klein

Klein says that DIRECTV was being deceptive about several things. The most important thing was that the company did not adequately disclose the subscription price of its satellite service. The catch is that consumers were signing up for a two-year service. The company didn’t reveal this in its television advertising or in its signup process for customers. A customer who cancelled before the end of the two years would still be billed for the entire period. The company also failed to disclose that the monthly prices went up significantly in the second year of the contract, an increase of 50-70%.

The second problem had to do with premium channels that were included in the offer. The advertising indicated that for a free trial period customers would get channels including HBO, Cinemax, and Showtime. The concern was that the free trial period was a “negative option” trial, meaning that consumers who did not affirmatively cancel the free channels during the free trial period would be billed about $48 per month until they were cancelled. Klein says that this approach to marketing is “pretty prevalent” among various types of products and services peddled to the public, including online advertising, including mobile, and late night television. Klein notes that a significant part of his time is spent advising clients in the Internet and mobile advertising business in how to handle their marketing in order to comply with FTC rules.

Klein explains that the FTC requires that, before a vendor obtains “associated billing information” (including billing information, such as credit card numbers) from customers, the vendor needs to disclose material terms and conditions associated with the service. In the case of DIRECTV, it needed to disclose that the period of the contract was really two years and that the price would go up in the second year. It also needed to disclose that the free package of premium would produce a monthly bill after three months if a customer did not cancel those channels. Once a vendor makes the disclosure, it must obtain the customer’s consent to this arrangement on an ongoing basis. If the marketing is online, the disclosure needs to be directly above the “Submit” button.

As to what will happen next, assuming the FTC complaint is upheld, Klein says that everyone who complained about DIRECTV will become part of a settlement pool. If there is later a settlement, as Klein expects there will be, those who complained will be able to recoup their payments to DIRECTV from the settlement fund. One of the FTC’s functions is assuring truth in advertising.

David O. Klein is a managing partner at Klein Moynihan Turco LLP. David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements. He has an in-depth understanding of Internet and new media law and is established as a leader in structuring and implementing major technology agreements. The Legal Broadcast Network is a featured network of the Sequence Media Group.

California Faces a Drought of Epic Proportions; Prof. B. Lynn Ingram Explains

California is facing a severe water crisis. After years of drought, the state has only a one-year supply of water stored and available for use. Professor B. Lynn Ingram has said that this year’s drought could be the worst in five hundred years. She explains California’s water plight in this report.

Prof B. Lynn Ingram

Prof B. Lynn Ingram

Ingram says that the 20th century stands out as a somewhat wetter century. During this time, California built all its reservoirs and water storage facilities. However the last few years have been drier than the last twelve hundred years. The last four years have been the driest during that twelve century period.

While all the American West has been dry during the past few years, California has been the driest. The U.S. Drought Monitor shows that California and Nevada have the worst of the drought that is afflicting the western states. Ingram says that it is hard to separate the part of the problem that is cyclical from the part that can be attributed to global warming. However, she points out that warming will reduce rainfall and snowpack, and warmer weather will produce more evaporation.

The el Niño weather phenomenon could theoretically bring more rain to California. However, Ingram says, the effect of an el Niño is hard to predict. It can produce more rain or a drought.

As to whether government policies could have made a difference, Ingram notes that California has developed dams and reservoirs on virtually every water source in the state. The existence of more effective regulations might have helped California avoid exhausting all its available groundwater.

B. Lynn Ingram is a Professor (Earth & Planetary Science and Geography) at the University of California-Berkeley. She is also the author of “The West without Water.” She supervises the Laboratory for Environmental and Sedimentary Isotope Geochemistry. One of her primary field areas is the San Francisco Bay estuary and watershed, where she has worked over the past ten years with three graduate students and one postdoctoral fellow. The Legal Broadcast Network is a featured network of the Sequence Media Group.