Charles

*516 Plaintiffs appeal from the judgment of dismissal based on the sustaining of a demurrer to their putative class action complaint under the California Safe Drinking Water and Toxic Enforcement Act of 1986. ( Health & Saf. Code, § 25249.5 et seq. (Proposition 65 or the Act).) This appeal challenges the Proposition 65 warning provided by defendants for wines that contain purportedly unsafe levels of inorganic arsenic, a chemical identified by the State of California as a carcinogen and reproductive toxicant (listed chemical).

It is undisputed that defendants provided the so-called "safe harbor" warning for alcoholic beverages: "WARNING: Drinking Distilled Spirits, Beer, Coolers, Wine and Other Alcoholic Beverages May Increase Cancer Risk, and, During Pregnancy, Can Cause Birth Defects." ( Cal. Code Regs., tit. 27, § 25603.3, subd. (e)(1) ; 1 see Ingredient Communication Council , Inc. v. Lungren (1992) 2 Cal.App.4th 1480 , 1485, 4 Cal.Rptr.2d 216 [describing "safe harbor" warnings].) Plaintiffs do not take issue with the adequacy of the safe harbor warning for alcoholic beverages as applied to the health risks posed by alcohol. Instead, their concern is with the lack of…