• Californians won’t get Prop 65 warning about dioxin in meat Wednesday, December 23, 2009

    Under Proposition 65, approved by California voters in 1986, state law requires that consumers receive specific warnings in regard to the safety of water and the food that is made available to them.  The California Safe Drinking Water and Toxic Enforcement Act of 1986 requires that warnings be given to consumers if there is danger of being exposed to specific harmful chemicals.  Under California law, a private citizen may file a court action (a citizen’s lawsuit) to enforce Prop 65 as long as she complies with certain conditions.

    In 2004 Ms. Whitney R. Leeman served notice on eight California meat companies and retailers, claiming that they were violating the law by selling ground beef and liver products that contained dioxin and PCBs at retail locations, without the types of warnings required under Prop 65.  Both dioxin and PCBs are known carcinogens.

    But federal law also comes into play here.  The Federal Meat Inspection Act requires federal inspectors to rigorously inspect meat products.  Passing inspection depends in large part on whether the meat has been adulterated by having poisonous or otherwise harmful ingredients added to it.  And the act forbids any state to have laws that conflict with the federal law by requiring additional or different information in meat products’ labels.

    Leeman did not actually file a citizen’s lawsuit; she attempted to work with the meat companies to resolve the matter, but after 60 days the companies filed a complaint in the San Diego Superior Court asking it to rule that Prop 65 warning labels on the meats are expressly controlled by, or preempted by, the Federal Meat Inspection Act.

    Leeman argued that Prop 65 requires warnings be applied to the meat products at “the point where they are sold” (retail stores) and said such warnings are different from the meat inspection labels that the federal law describes.  Therefore she argued Prop 65 warnings would not be controlled by the federal law in this case.

    In the San Diego Superior Court, Judge Thomas P. Nugent ruled in favor of the meat companies, stating that the federal law does indeed preempt state law in this case.

    Leeman appealed to the Court of Appeal Fourth District Division One.  There Justice Joan Irion ruled for the meat companies and affirmed the trial court.  The court determined that the point of sale warnings attached to the meat products at retail locations are the type of “labels” covered under the federal law.  Thus the Prop 65 warnings would be additional label information attached to the meat product and would be prohibited under the federal law.

    Bottom line for California consumers:  the information about potential carcinogens in meat that is normally required under Prop 65 was ruled to conflict with the federal law and is prohibited.

    American Meat Institute v Leeman Court of Appeal Fourth District Div 1 (D053325)

    –Steve Ingram

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Category: Appellate Reports;