Villages of Woodland Springs Homeowners Association

Subsidiaries of Mars and Hershey: candy makers will get the lead

Jul 10, 2006

By JENIFER B. McKIM

Children who eat popular Mexican candies available in local stores shouldn't have to worry about getting lead with many of their spicy favorites after three top candy makers Wednesday signed a first-of-its-kind settlement with the state of California

The candy makers, including subsidiaries of Mars and Hershey, agreed to annual audits of their companies and chili suppliers, lead testing, and a one-time cash payment of nearly $1million to reduce lead industrywide and pay legal fees.

Health advocates and government officials who spent two years wrangling with the top makers of tamarind- and chili-based candies hailed the agreement as a victory for children's health. Lead accumulates in the body and even at low levels can affect a child's behavior and ability to think.

"Untold hundreds of thousands of children will now be safe and have a better life," said Los Angeles City Attorney Rocky Delgadillo, one of the plaintiffs in the suit. "Lead is poison. This settlement will have impact well beyond California."

The settlement comes two years after an Orange County Register investigation showed state and federal regulators knew for more than a decade about contaminated candies linked to lead-poisoned children but did little to inform the public or get products off shelves.

The series revealed how unwashed chilis were a major source of lead and that candy makers sold unclean, less-safe products in Mexico, which often made their way to Southern California store shelves.

The Attorney General's Office led a coalition of government agencies and non-profit groups months later to sue candy makers under provisions of Proposition 65, the state's anti-toxics law. The law, approved by ballot initiative in 1986, requires warning labels on anything that could cause cancer, birth defects or other reproductive harm.

The Alameda County district attorney, the Oakland-based Center for Environmental Health and the San Diego-based Environmental Health Coalition also were involved in the suit.

"This is a tremendous victory for children, parents and everyone who cares about protecting our health," said Luz Palomino, a community organizer with the San Diego-based health coalition, who worked with mothers calling for government action for more than five years.

"As soon as they learned that the candy so loved by their children could be poisoning them, the women took action: They bought candy at their local stores, had it tested, and once the results were in, they began their crusade to get the lead out of all candy."

Candy companies who agreed to the settlement say they are confident they already meet stricter guidelines. They include Lucas-brand candy maker Effem de Mexico, a subsidiary of Mars Inc.; Grupo Lorena, now part of Hershey Co.; and four Mexican-based companies under the umbrella company Vero.

Attorneys were awaiting official signed documents late Wednesday and expected to file the agreement in Los Angeles Superior Court today.

"Our clients are pleased we are able to amicably resolve the matter,'' said attorney Robert Falk, emphasizing companies were working to eliminating lead sources in candy before the litigation. "Others who wish to settlewill have to make those investments. They can be substantial."

The state sued 33 companies but ended up talking with the three largest manufacturers. Other candy makers must join the settlement or face litigation. These companies make other popular candies such as Serpentinas and Bolorindo.

"We are hopeful they will still sign on to this agreement," said Attorney General Bill Lockyer. "If there are malingerers that fight back, then the enforcement and regulatory action will be more severe."

The settlement, to be reviewed by a judge next month, includes:

Mandatory audits by an independent company checking for lead for three years, and internal company audits after that.

A maximum lead level in candy of 0.1 parts per million, a level consistent with a new draft guideline proposed by the U.S. Food and Drug Administration and still under consideration. Candy makers will provide testing results to show goal is being met.

A public list of companies who comply and whose products are safe.

An "opt-in" provision for other companies to join the settlement. Small companies could receive matching funds to pay for audits.

Dennis Ragen, deputy attorney general, said consultants and money provided under the settlement would help smaller companies meet the strict requirements. The nearly $1million fund also will pay for public outreach to inform local communities about lead risks.

"We've created a way to get the lead out of candy and we've created a template for companies to get the expertise they need to sell a popular tasty product in a safe way," Ragen said.

As part of the litigation, the state and other plaintiffs hired an auditor to visit candy makers and chili suppliers in Mexico and look for lead sources. The auditor confirmed that dirty chili was a major source of lead. Washing the chili pods could reduce the lead contamination to a fraction, auditors found.

State officials say the finding and new requirements should help the entire candy industry clean up its manufacturing processes.

At this point, state officials say candy companies that produce the popular Baby Lucas and Pelon Pelo Rico already are safe. However, they said older, unsafe versions of the candies could still be on local shelves.

"If there is old candy, I would not be sure it would be wise to eat it," Lockyer said.

Also, companies that have not joined the settlement could still be producing toxic candy, officials said.

Last year the state Legislature passed a law making it a crime to sell lead-tainted candies.

Stalled by lack of funding, it requires the state to test candies and warn health departments and candy makers about contaminated products. Gov. Arnold Schwarzenegger proposed at $1million allotment to fund the bill in the next budget.