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No Federal Case Over Arsenic and Lead in Juice

(CN) - A federal judge summarily dismissed claims that Walgreens improperly labels its juices as 100 percent grape or apple, despite alleged arsenic and lead content.

Just weeks after Randy Boysen filed his December 2011 class action against Walgreen Co. in the Northern District of California, a Massachusetts federal judge dismissed similar claims that were consolidated before a multidistrict litigation panel.

U.S. District Judge Susan Illston said last week that Boysen failed to establish standing, as had the plaintiffs behind the multidistrict action.

"To establish standing, plaintiffs there argued that if they had known the products contained lead, they would not have purchased them, and thus suffered an economic injury," Illston wrote, summarizing the multidistrict action. "As here, plaintiffs did not allege that they or anybody else had actually been injured by the fruit juice, and the FDA had found "at least some of these products do not pose an unacceptable risk to human health."

There is much precedent for the court's finding, Illston added, noting that federal courts have also thrown out allegations about the lead content of L'Oreal lipstick.

"Plaintiff does not allege that the toxin levels surpassed regulations regarding the product at issue, fruit juices, likely because the levels fall within the FDA advisory guideline levels for fruit juices," the 12-page decision states. "While the FDA has issued no formal regulations, it has provided guidance to fruit juice processors that lead quantities should not exceed 50 ppb. An FDA analysis on arsenic in pear juice products states that products containing over 23 ppb of inorganic arsenic would represent a potential health risk. Plaintiff alleges levels of 20.48 ppb inorganic arsenic and 15.9 ppb of total lead in the grape juice, and 6.94 ppb of lead in the apple juice, all below the FDA's guidance levels.

"Moreover, the FDA has issued reports stating that the levels of lead and arsenic found in juice products such as defendant's are safe."

Illston distinguished Boysen's case from Degelmann v. Advanced Medical Optics, in which the 9th Circuit revived allegations over contact lens solution that were recalled after regulators found a high incidence of infection.

"Unlike in Degelman, he does not allege that the products function less well than advertised, or that a recall occurred," Illston wrote of Boysen. "He does not allege that had defendant's juice been differently labeled, he would have purchased an alternative juice. Put simply, plaintiff only alleges that he purchased and consumed the fruit juices, but that the levels of lead and arsenic in defendant's product were unsatisfactory to him."

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