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Winemakers fume over lawsuit that alleges dangerous levels of arsenic in wine.

"It's the equivalent of yelling fire in a crowded theater when there is no fire and in fact, everything's perfectly safe."

That's the response of Chris Lehane, a spokesman for The Wine Group, to a grandstanding lawsuit filed Thursday that claimed unhealthy levels of arsenic in California wine.

The class action, which was filed in the California Superior Court on behalf of four plaintiffs, appears to have little chance of succeeding because there is no established legal standard, either by the state or the US government, for arsenic in wine.

Moreover, the levels of arsenic (up to 50 parts per billion) described as "dangerous" in the lawsuit are half of those considered acceptable in Ontario, Canada, and one-fourth as high as those permitted in Europe and elsewhere by the OIV.

But in the court of public opinion, the accusation has already found a sympathetic ear. CBS News aired a report about the pending lawsuit on Thursday morning, and websites including Eater, Patch and The Business Journals were quick to parrot it. By Friday, who knows how far the "arsenic in California wine, oh my!" story will spread?

The arsenic story originated in the Denver-based laboratory of a man who appears poised to benefit. Kevin Hicks is not named as a party in the lawsuit, but attorneys for the plaintiffs said his lab did tests that showed some wines had arsenic levels higher than those allowed in California for drinking water.

"He went to the wineries. They didn't respond to him," attorney Michael Burg told Wine Searcher. "He wanted them to clean up their act. He issued a press release and nobody read it."

Burg said Hicks brought the data to the attorneys who filed the lawsuit.

On the day it was filed, Hicks' company BeverageGrades issued a press release saying: "BeverageGrades believes that retailers need a screening and certification model that allows them to assure their customers of the purity of all of the alcoholic beverages they sell, and particularly their control or private label brands." This is the service Hicks sells.

Health scare driven by money

"He has direct financial interest in this," Lehane said."This isn't about health concerns. It's about someone's economics."

Interestingly, the suit names only producers of cheap wines, which has several implications.

"The lower the price of wine, the more arsenic you are getting," plaintiffs' attorney David K. TeStelle said." It's also worth noting that these "cheap wine" producers being sued are large wine companies, and the ones with the most assets.

Stephen Cater, director of quality assurance for the Liquor Control Board of Ontario, told Wine Searcher: "In the past year alone, the LCBO quality assurance laboratory tested more than 11,900 wines for arsenic levels, including 1543 wines from California. All of the wines from California that the LCBO lab tested and subsequently offered for sale were below the maximum allowable limit for arsenic. We have not observed elevated arsenic levels in US wines compared to what is found in wines from other regions and countries."

While potentially dangerous, arsenic naturally occurs in soil. It can also be introduced into wine by filtering with bentonite and possibly through pesticide residue.

The US government recently issued limits for arsenic in apple and grape juice, and has standards for it in other food products. Winemaker Larry Brooks told Wine Searcher that the amount of arsenic in wine reported as dangerous in the lawsuit was the same that the Food and Drug Administration recently found was the average for brown rice.

California has a limit of 10 parts per billion of arsenic for drinking water, but Lehane pointed out that most people, including children, drink a lot more water than wine.

The Wine Institute issued a press release Thursday saying: "We are concerned that the irresponsible publicity campaign by the litigating party could scare the public into thinking that wine is not safe to consume, which is patently untrue."