Talking-Rain settles lawsuit

Lots of things go great together: peanut butter and jelly, Fred and Ginger, milk and cookies. But vitamin C (ascorbic acid) and the preservative sodium benzoate aren't on that list. When temperatures rise high enough, the combination of the two can create the cancer-causing chemical benzene.

Preston-based beverage company TalkingRain reformulated its drinks this spring to replace sodium benzoate with potassium sorbate to remove the risk of the reaction. TalkingRain was named in a class action lawsuit filed April 12, 2006, in Washington, D.C., that claimed the company's grapefruit-flavored sparkling juice drink exceeded federal guidelines for benzene in drinking water. That lawsuit was settled Aug. 25.

According to the settlement, TalkingRain and another beverage company - Georgia-based In Zone Brands Inc. - each had to pay plaintiffs $35,000 to cover legal fees, in addition to reformulating their beverages.

"It's the responsible thing to do," said TalkingRain President Doug MacLean. When the company first learned of the possibility of a problem in March, it immediately began changing the ingredients, replacing sodium benzoate - a common food industry additive - with another common preservative, potassium sorbate, MacLean said.

The switch was completed in early April. Changing ingredients was a "huge expense" because all the product labels had to be reprinted to reflect the new contents and the mixing process needed to be altered to accommodate the potassium sorbate, which doesn't blend as easily as sodium benzoate, MacLean said.

However, MacLean said the expense was worth it because it's what a responsible company would do if there's even a slim chance of harm.

According to the U.S. Food and Drug Administration (FDA), low levels of benzene can form in soft drinks. The government has no regulatory limits for benzene in beverages other than drinking water, which has a maximum contaminant level of five parts per billion. According to the lawsuit, a sample of TalkingRain's grapefruit drink tested at 11 parts per billion.

The FDA conducted tests on a variety of soft drinks - not including TalkingRain beverages - between November 2005 and April 2006. Most did not contain elevated levels of the chemical. However, some did. Elevated temperatures and light can stimulate the formation of benzene when vitamin C and benzoate preservatives are present.

Benzene has been linked to leukemia in patients who inhaled the chemical in solvents or fumes at work, according to the International Agency for Research on Cancer. According to the FDA, benzene in beverages has not been linked to cancer.

MacLean said a person would have to drink a liter a day of benzene-containing pop for 70 years before the levels would reach cancer-causing proportions. The amount a person inhales while pumping gas into a car is much higher than what could ever be in a beverage bottle, he said.

However, several lawsuits have been filed this year against drink manufacturers nation-wide, including beverage giants Coke and Pepsi, for the same combination of ingredients.

MacLean said fighting this type of lawsuit isn't in line with TalkingRain's philosophy of being a good corporate neighbor. The company teams with leading organizations such as the American Diabetes Association, the Susan G. Komen Breast Cancer Foundation and the Patrons of Cystic Fibrosis to sponsor more than 450 sporting, cultural and educational events every year. TalkingRain also shipped water to New Orleans - which they continue to do - in the wake of Hurricane Katrina last year.

Also, unlike the beverage giants, TalkingRain doesn't have the money to fight a well-financed lawsuit, he said.

The small financial settlement "was really nothing in the big picture," MacLean said. His company ended up being lauded for its action of switching ingredients.

Boston-based attorney Andrew Rainer, who represented the families in the suit against TalkingRain and In Zone, did not respond in time for publication.

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