Professional Responsibility

A Small Businessman

Robert Bartlett owns a West Virginia vineyard, Highlands Way, and makes wines which he markets coast-to-coast. West Virginia may not be well known for fine wine but the wines produced here are finding a place in upscale markets. Bartlett and his colleagues in the wine making business have now shown that West Virginia's highland valleys and pure mountain water are perfect for the French hybrid Seyval, Aurore, Foch, Blanc, and Vidal Blanc wine grapes.

You have not previously represented Bartlett, but you enjoy wine, and would like to have Bartlett as a client.

During your first meeting with Bartlett, you learn that the fermentation process Bartlett and other West Virginia wineries use make the wines "fragile," and they have a shorter bottle life than premium California wines. With Bartlett's expanding market and sales to out-of-state markets, he has been adding a chemical preservative to the wines which help stabilize in-bottle aging.

The Food and Drug Administration, in its tests of the preservative used by the West Virginia wine makers has determined that in sufficient quantities, the preservative causes cancer of the liver in rats. The FDA has authority to ban such substances from consumable products whenever scientific tests on animals result in findings which suggest that the substance may be dangerous to human beings as well.

Robert Bartlett and his fellow wine makers have just "put down" the summer picking of grapes and Bartlett has already treated a substantial part of his current production with the suspected cancerous chemical preservative. Bartlett, with financial support from other small vineyard operators, seeks injunctive relief to delay the FDA ban on the chemical preservative. Bartlett, and other vineyard operators, claim they will undergo serious financial harm if they cannot use the chemical preservative.

The FDA chemical preservative studies have been conducted by reputable scientists at UCLA and Harvard. The American Academy of Science, the most prestigious body of scientists in the world, has for many years supported regulatory bans on the use of chemicals found to cause cancer in animals based on the kind of studies undertaken on the wine preservation chemical. Bartlett claims that he has followed the work of the FDA closely and has learned that there is at least one well-known scientist who claims that cancer research using animals is unreliable in determining the long-term effect of chemical substances in humans.

As a lawyer, will you represent Bartlett and seek to delay implementation of the FDA ban on the use of chemical preservatives in wine to permit your client (and his colleagues who will finance the lawsuit) to sell the present year's crop of grapes?