California's Safe Drinking Water and Toxic Enforcement Act (Prop. 65) is creating controversy once again after As You Sow filed a 60-day notice of intent to file a lawsuit against Rosa Labs, LLC. The lawsuit would allege that the company's Soylent 1.5, a meal replacement powder, violates Prop. 65.
Prop. 65 requires food products that exceed strict limits on the levels of toxic elements to have a label that says, "WARNING: This product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm." As You Sow claims that test results from two samples of Soylent 1.5 found that one serving can expose a consumer to lead that is 12 to 25 times above California's Safe Harbor level and cadmium that is at least four times greater than the Safe Harbor level.
Soylent admitted its product exceeds some of the California limits but claims it complies with the law by displaying the warning. The company points out that Prop. 65 sets much more stringent limits for heavy metal levels than does the FDA, the EPA, and the WHO. As a result, many foods (and other products sold in California) contain warning labels.
Soylent stated on its blog, "Soylent does not have unusual or unsafe levels of lead, cadmium, or any metal. As You Sow's legal claim is that we do not display the required Proposition 65 notice, which is incorrect." The company provides access to a full certificate of analysis for Soylent 1.5.
But where is the Prop. 65 notice? It's accessible from a link on the checkout page of the company's website. Does that comply with the law to display the notice? "It could," according to David Biderman, an attorney experienced in food litigation and a partner with Perkins Coie. Biderman noted the law doesn’t have a specific requirement for where the notice must be displayed. The website is the only official source to buy Soylent.
Soylent began as an experiment by Rob Rhinehart in late 2012. Looking for a way to replace food, he studied nutritional biochemistry textbooks and the FDA, USDA, and Institute of Medicine websites. He identified 35 nutrients humans require to survive. He ordered them, mostly as a powder or pill, and put everything into a blender, with water. Rhinehart lived on the potion, which he called Soylent, for 30 days, and then published a blog post, How I Stopped Eating Food in February 2013.
Rhinehart then created a crowdfunding campaign for Soylent that raised $754,498. He also attracted venture capital, including Y Combinator and Andreessen Horowitz. The company, Rosa Labs LLC, shipped the first version of the product, Soylent 1.0, in April 2014.
Soylent has been through several versions since that time. The product was only in powdered form until the early August 2015 release of Soylent 2.0, which is a ready-to-drink product. The company still sells the powder as Soylent 1.5, which is the target of the potential Prop. 65 lawsuit.
Although the traditional meal replacement market has mostly targeted weight loss (think SlimFast) or nutritional deficiencies (think Ensure), Soylent aimed itself at people who don't want to take time for meals. As TechCrunch stated, "The startup built a lot of buzz, especially among the highly driven tech community and college student crowd, who would down Soylent instead of meals when they were too busy coding or cramming to take time out to eat."
For consumers looking for a "clean" label, Soylent doesn't deliver. The latest versions of the product (1.5 and 2.0) are vegan, after the company replaced fish oil with algal oil for omega-3s. The company also has a GMP-certified facility. However, the product isn't organic or GMO-free, and it contains soy and gluten. Some consumers will also look askance at ingredients such as maltodextrin and mono and diglycerides.
Determining levels of toxic substances
Soylent is just the latest target of Prop. 65 lawsuit, with a great increase in the number of these lawsuits filed recently, according to Biderman.
Because the cost of defending against a lawsuit is so high, many companies settle without going to trial. An exception was Environmental Law Foundation v. Beech-Nut Corporation et al. In 2013 a judge ruled in favor of Beech-Nut, saying that food and beverage companies can average exposure over time to determine if a product's level of toxic substances is above the California threshold level and requires a warning.
What's Soylent's next move? The company didn't respond to a request for comment.
Biderman's advice for a company affected by a Prop. 65 lawsuit? Request a copy of the other party's test results, hire a lab to do sampling and testing, and hire toxicology and consumption experts to analyze the results.