Plaintiffs in California’s Proposition 65 food cases often use a simple, aggressive math trick to calculate exposure. They assume a consumer eats the full serving size listed on a label every single day, a calculation that inflates violation claims and settlements, according to Dennis Raglin, a shareholder at Carlton Fields. The statute actually requires exposure to be calculated using “typical consumer” and average consumption data, not a full daily serving. Raglin notes that defendants have recently won Proposition 65 food trials by rejecting these inflated assumptions. In his experience, courts agree that exposure is decided by the average consumer’s consumption. Judges rejected the position plaintiffs’ lawyers routinely take to force settlements: that “average” means a full serving size as shown on the label, eaten every day, for the rest of the consumer’s life. Exposure determination turns on the “typical user,” but the regulatory language is dense. It requires calculating exposure based on the pattern and duration relevant to the specific chemical effect.
The Math Behind the Dispute
Exposure is determined by multiplying the chemical concentration by the reasonably anticipated rate of intake. For a wrench, this means asking how often the average person uses it and how long. For food, it means asking how often an average person eats a product and how much they consume. Courts require admissible evidence for these numbers: government data such as Labor Department statistics, or a reputable survey commissioned to question people on their typical handling and use of the product.
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Raglin uses lentil soup as an example to illustrate the disconnect. The average person does not eat a full bowl every day. Legal teams ignore this real-world data. They look at the label’s serving size, multiply it by the chemical concentration, and call that the only acceptable exposure figure. This is, effectively, a shortcut. That “how and how long” data is multiplied by the chemical concentration to calculate exposure, which is measured in micrograms, not the parts-per-million or -billion used to measure concentration in the product itself. So how do we calculate exposure for food? The same concept applies to food. The plaintiffs’ calculation almost always produces an exposure level above the safe harbor, which in turn forces a settlement.
Unlike the extreme example of a consumer who eats lentil soup constantly, most people do not eat a bowl of soup daily. Treating “every day” as normal is exactly what plaintiffs’ lawyers do. They ignore real-world data in favor of the full-serving-daily assumption. This may surprise observers: money. The plaintiffs’ calculation almost always produces an exposure level above the safe harbor, which in turn forces a settlement. Using their method, individuals like Uncle Mortys, who can’t get enough of the stuff, become the “average” consumer. That is not what voters intended when they passed Proposition 65.
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Recent Legal Wins
The defense has fought back successfully against the artificial full-serving, daily-consumption assumption. The Beech-Nut case serves as the main weapon, having established that NHANES average consumption data is the best source for food consumption. The current legal trend favors this defense. Settlements allowing averaging have won court approval. All three decisions are currently on appeal.
The consensus extends beyond just lead. The Pictsweet Company case involved cadmium in spinach. The presiding judge found that exposure should be based on NHANES averaging. This was the first food trial involving cadmium, a chemical increasingly targeted by enforcers. Legal challengers argued Beech-Nut averaging shouldn’t apply outside of lead cases. The judge disagreed. Furthermore, the court found that OEHHA listed cadmium based on science that averaged exposure over time, not a single day. OEHHA’s own data showed sperm count and motility effects only after long-term exposure, which clearly wasn’t a single day.
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The state’s Attorney General’s office routinely objects to proposed settlements based on averaging. In a recent case involving mercury in fish steaks, the AG appealed a consent judgment arguing it permits exposure on a single day that is higher than the safe harbor. The appeal was limited to whether the settlement served the public benefit. This creates a new dynamic for the defense strategy.
The outcome of this case will determine if the legal trend continues to favor averaging over the inflated consumption assumptions used in the early stages of Proposition 65 litigation.