Two guys named Kevin hold Two-Buck Chuck for ransom

This week, Trader Joe's was named in a class action suit alleging that many California wines—including “Two Buck Chuck”—have unsafe levels of arsenic. Some wines have up to five times the arsenic allowed in drinking water. 

The State of California (and the U.S. EPA) specifies that drinking water cannot contain more than 10ppb (parts per billion) arsenic, a toxic heavy metal. There is no standard for wine. Specifically, the sample of Charles Shaw White Zinfandel was found to have more than 20ppb of the toxic heavy metal.

The lawsuit, which was first reported by CBS News, has generated a ton of publicity very quickly. It’s a regular meme, right now. The suit was brought by a lawyer named Brian Kabateck, who was alerted to arsenic levels in popular (read: cheap) wines by BeverageGrades, a company run by two guys going by the name Kevin.

According to his website, "Mr. Kabateck’s vigorous litigation on behalf of his clients has netted more than a billion dollars in recoveries. He has won many multi-million dollar verdicts, judgments and settlements in the areas of personal injury, insurance bad faith, pharmaceutical litigation, wrongful death, class action, mass torts and disaster litigation... Because of his deep knowledge of the law and dynamic speaking style, Mr. Kabateck is a frequent analyst for national, local and legal media outlets. He makes regular appearances on CNN, MSNBC, CBS, NBC, ABC, FOX  and CW stations. In addition to his television exposure, Mr. Kabateck often speaks at seminars, law schools and industry events. 

I suppose it’s possible that Kabateck is in it for more than just the money. It’s possible that he really does have the safety of California wine consumers at heart, but is just misinformed.  

But whether Kabateck wins his lawsuit or not, this publicity is a gold mine for the Kevins and their BeverageGrades business. By highlighting the “dangerous” levels of arsenic in some wines, they’re effectively pressuring winemakers to pay for BeverageGrades' testing and rating service. Until now, they haven’t had that much business, since they’ve only given their ‘Seal of Approval’ to about 150 wines in total. 

Kerry Hicks (left) was identified as Kevin Hicks in BeverageGrades' own press release about arsenic levels in cheap California wines. Hicks' previous business was HealthGrades, a web site that rates doctors and hospitals and which claims to get a million hits a day. That's a lot more interest than BeverageGrades has ginned up, until now. Kevin Byrne is Hicks' business partner.

I’m not just a conspiracy theorist when I suggest that Hicks & Byrne have purposely manufactured a problem—or should I say, 'hysteria' about arsenic levels in wine—in order to promote their solution, in the form of BeverageGrades ‘A+’ rating. (Which, by the way, is the only rating they offer; it’s either A+ or, by inference, poison.) 

BeverageGrades has pretty much admitted that’s exactly what it set out to do. A day or two after their carefully orchestrated story broke, they had the gall to send a professionally written press release to WineBusiness.com, reading in part...

BeverageGrades provides comprehensive health and nutritional information for alcoholic beverages via testing in its independent, state-of-the-art lab, using methodology developed by the American Organization of Analytical Chemists. BeverageGrades offers two health panels for screening products for the presence of contaminants in levels that exceed regulatory standards; these include heavy metals in one panel, and pesticides in in the other. The company offers an A+ BeverageGrades Certification to specific products that fall below certain regulatory thresholds in panels of heavy metals and pesticides... 

Our goal is to be the beverage industry’s top resource for analytical product information, so producers are able to remain in compliance with regulatory provisions, and maintain consumer trust.

Don’t be fooled by the coy language, that’s little more than a fucking ransom note. What they're saying to the wine industry is, "First we'll shake consumers' confidence in your products with this bogus arsenic scare. Then, you can pay us to rebuild consumer trust with our pseudo-scientific Seal of Approval." So, what’s been lost here? Well, business ethics, obviously. But another thing lost is scientific perspective.

Yes, it’s a fact that arsenic is toxic. Some arsenic compounds are very, very toxic. But since Kevin/Kerry Hicks is a medical doctor, he knows that small quantities of arsenic have long been safely used in both traditional and western medicine.

Here are the facts: While California and the U.S. EPA set a cautious level of 10ppb for arsenic in drinking water, many other places either don’t regulate it or allow much higher levels. The EPA accepted up to 50ppb until 2006.

There is no scientific evidence to support the lawsuit’s claim that arsenic levels in Two Buck Chuck represent a health threat. Acute arsenic poisoning results from the ingestion of more than 100mg of arsenic. That means that you’d need to consume all the arsenic in at least 7,000 bottles of cheap rosé at once, to poison yourself.

Of course, the implied threat is not acute poisoning, but the carcinogenic effects of long-term, chronic exposure. That's a real thing, although all the studies have looked at well water with far, far higher levels of arsenic than BeverageGrades found in wine. The most-cited study, of a population exposed to arsenic in Taiwan, looked at people drinking water with at least ten thousand times as much arsenic in it. And, the people most susceptible are children, especially in utero. Children and pregnant women shouldn't be big wine drinkers anyway.

Those poor Taiwanese people were drinking water loaded with arsenic. Other studies have established toxicity at lower levels, but not at the 10ppb level set for water, which is the level BeverageGrades claims is also unsafe in wine. Estimates of the toxicity at those levels are extrapolations. 

According to Health Canada, if you spent your lifetime drinking water with 10ppb arsenic your odds of dying of cancer would be 0.3% higher than if your water had no arsenic at all. So if you're an American man with baseline odds of dying of cancer of 1 in 4 (estimate: American Cancer Society) raising the arsenic level in your water by 10ppb would increase your odds to 1 in 3.98. A woman's chances of getting cancer are about 1:5, so they'd go up to 1:4.98.

To put it another way, in a hypothetical population of 1 million people you'd expect, say, 22.2% of population to die of cancer and 77.8% to die from all other causes. If the arsenic levels in that population's drinking water were to be raised by 10ppb, you'd expect 22.5% of them to die of cancer, leaving 77.5% of them to die of all other causes. Again, these are estimates, based on extrapolations from toxicity at much higher levels. It's not possible to accurately measure the risk from drinking water at 10ppb, because the risk is so small that it's lost in standard deviation.

The reason there are no arsenic levels established for wine in the U.S. is that there is no evidence that wine has ever been a dangerous source of arsenic for anyone. 

Even if you look at the highest concentrations of arsenic that BeverageGrades found, and assumed that all the arsenic they found was the most toxic form, you’d die of cirrhosis, diabetes, or in a drunken car crash long before you’d accumulate a toxic dose of arsenic. Not only that, but as BeverageGrades knows, the cheap wines that showed high arsenic levels are blends of grapes from all over the state, that change all the time. There’s no reason to believe that those wines’ arsenic levels will be the same next month, let alone next year. 

The Ontario (Canada) Vintners Quality Alliance standard, which is reserved for high-quality wines that are far above minimum standards, allows for 100ppb arsenic. The highest arsenic levels found by BeverageGrades were about half that amount.

Kabateck Brown Kellner is going after Trader Joe's, the Franzias, and a few others because they’re huge targets with deep pockets. BeverageGrades released those brands' arsenic levels to Kabateck because Hicks & Byrne know TJ's and the rest of the commodity winemakers will never pay them for a good rating. But if they can hurt TJ's, they'll scare other winemakers into paying what amounts to protection money.

Don’t get me wrong; Two Buck Chuck is shit. But this lawsuit is bullshit, and BeverageGrades’ strategy is nothing less than corporate piracy.

Here's the full list of companies named in the suit:

• Sutter Home Winery
• Trinchero Family Estates
• Folie a Deux Winery
• California Natural Products
• Golden State Vintners
• Varni Brothers Corp.
• Treasury Wines Estates Americas
• Beringer Vinyards
• Seaglass Wine
• Constellation Wines
• Hahn Family Wines
• Smith & Hook Winery
• Raymond Vinyard and Cellar
• Fetzer Vineyards
• A. Korbel & Bros.
• Mason Cellars
• Oakville Winery
• Woodbridge Winery
• Simply Naked Winery
• Winery Exchange
• Sonoma Wine Co.
• Don Sebastiani & Sons
• Bronco Wine Company
• Trader Joe’s Company

NOTE: This version includes changes to the math/statistics to make it more accurate and easier to understand. It corrects some arithmetic errors that appeared in the first 18 hours this post was live. The errors were not substantial.