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

No related posts.

Chlorsulfuron, a herbicide that was developed for wheat, was listed in 1999 as a “developmental, male reproductive, and female reproductive toxicant” as a result of it being added to the U.S. Environmental Protection Agency‘s Toxic Release Inventory in 1994. 

A review of additional research after a request to remove chlorsulfuron from that inventory led to the EPA determining in 2005 the chemical is not a developmental or reproductive toxin.  OEHHA officials say their response to DuPont’s request is “pending.”

No related posts.

Businesses must provide “clear and reasonable” warnings about exposure to certain chemicals under Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986.  That voter-approved initiative requires that consumers be warned about exposure to chemicals known to cause cancer, birth defects or other reproductive harm.

OEHHA is reconsidering its guidelines for providing warnings for exposure to chemicals in food purchased at retail stores, “including the relative responsibilities of product manufacturers versus food retailers,” according to the agency.  After a public workshop held Sept.25, the agency received responses from industry groups.

• The Agricultural Council of California, a lobby group that represents farmer cooperatives, said it found “many fundamental flaws” in the proposal.  In particular, it objected to a proposed requirement to list every naturally-occurring Prop 65-listed chemical in food.  It also claims the proposal open a food processor  to be sued “if a single retailer does not adopt the new system,” even if the processor provided the required information to retailers and distributors.
• The California Retailers Association and California Grocers Association submitted a joint comment on behalf of more than 6,000 member retailers.  The lobby groups contend that the proposal omits “the only viable option” for most food retailers to transmit warnings to consumers:  “a written compendium as a vehicle for making the warnings available to consumers in hard copy in the store.”  The groups also object to a proposed change from requiring warnings be made available to consumers to providing warnings “without requiring the consumer to seek out the warning,” a proposal they call “wholly unworkable.”  And the groups recommend small-to-midsize retailers be  “required to post only one general sign, directing consumers to the OEHHA food warning website.”
• Two national groups, the Grocery Manufacturers Association and the American Beverage Association, said in their joint comment the proposal would create a system that “cannot work and, therefore, will not be used.”  The manufacturers characterized the proposal that each listed chemical be identified as “unworkable, unnecessary and infeasible,” saying it would require a “prohibitively expensive testing regime.”  The comment also makes reference to what it calls an “escalating” number of “lawsuits and threatened lawsuits against food companies–including retailers” stemming from Prop 65.

The agency also received a joint comment from The Center for Environmental Health and the Mateel Environmental Justice Foundation, which worry that the changes weaken consumer information. They object to the proposal that consumers could be told about hazardous chemicals either through a warning with or on the register receipt or from a brochure offered at the checkout counter. The consumer-oriented groups say such warnings would come too late in the shopping process.

Changes in the warning requirements are not likely to occur until early next year.

No related posts.