in the KNOWN

In the Know Newsletter

May 31, 2013

Farmers, food processors support reform of Prop. 65

By: Emily Rooney, Ag Council president

Printed in Ag Alert, a publication of the California Farm Bureau Federation, on May 22, 2013


Californians see Proposition 65 warning signs on various items and at numerous locations and now plaintiffs’ attorneys want to extend such warnings to food.

California farmers, ranchers and food processors spend millions of dollars on nutrition studies promoting the health benefits of our products.

Think about it:

  • A daily handful of almonds can help maintain healthy cholesterol levels.
  • Increased consumption of dairy products can improve bone health.
  • Berries, plums and peaches contain high levels of antioxidants.

The list is extensive, and rightfully so. We produce some of the healthiest food in the world.

What would happen if we have to start putting warning labels on our food that imply it could cause cancer or reproductive harm?

Without reforms to Proposition 65, this is a very real possibility.

Proposition 65 passed by voter initiative in 1986. To the voters, it seemed like it was a well-intentioned proposition, meant to warn Californians about potential exposure to hazardous chemicals that could cause cancer or reproductive harm.

When the initiative passed, it was intended for drinking water, but the scope has expanded beyond its original purpose. We see warning signs on various items and at numerous locations—crystal decanters, airport jet ways, gas stations—and now plaintiffs’ attorneys want to extend these warnings to food.

There are hundreds of chemicals that are under consideration for the need to warn. Flipping through the list, we can easily recognize items that are naturally occurring in the soil, chemicals used for food safety reasons and some substances required for export. To say there are regulatory conflicts is an understatement.

Trial attorneys have been immensely successful in exploiting the law for financial gain. The California attorney general’s office publishes an annual list of Proposition 65 settlements. In 2011, more than $16 million in settlements were negotiated. Of that, approximately $12 million went to “attorneys’ fees and costs.” The Center for Environmental Health was the leader and had 107 settlements, cashing in more than $5 million—in one calendar year.

One current example involves litigation over lead in fruit. The Environmental Law Foundation (ELF) went down grocery store shelves and tested various products for lead content. ELF sued a number of retailers and food processors for not providing Proposition 65 warnings on items that tested over the threshold required for lead. The items tested included a number of California processed products including canned, juiced and processed carrots, peaches and sweet potatoes. Food processors argue that the lead occurs naturally and in trace levels that have been deemed safe by the FDA.

I am confident that lead is not being intentionally added to these products. Lead is present in the soil, either naturally or as a legacy issue. Either way, it gets absorbed through the plant and manifests itself in the fruit, as it has been for the thousands of years that humans have been eating fruits and vegetables grown in soil.

The problem with this scenario is that even though there is an exemption in the regulation for naturally occurring chemicals, the burden of proof is on the defendant. Therefore, the defendant has to prove that the chemicals were not added to the soil due to human intervention—ever.

This is not the only case involving food. Recently, the attorney general’s office filed a complaint against Trader Joe’s and Whole Foods over the presence of lead in candy that contains ginger and plums. Additionally, there have been suits over tuna and chocolate.

Defense fees for these cases can run into the millions of dollars. These fees are in addition to whatever requirements may be needed to meet the demands of a strong defense, such as soil testing, ambient air monitoring and other potential obligations.

Gov. Brown recently announced a reform package for Proposition 65 that could solve some of these problems. The list of reforms aims to end “shakedown” lawsuits by putting a cap on attorneys’ fees. In addition, it will require stronger science for initial claims of violations.

There also may be additional labeling requirements, in order to provide more meaningful information to consumers. For example, instead of stating an item could cause cancer or reproductive harm in a general sense, the label might explain who is most vulnerable: Is there a certain demographic in which the product may cause a risk, such as men, elderly people or pregnant women?

While we strongly support the reforms recommended by the governor, there are a number of hurdles to accomplish these goals.

First of all, it may require a two-thirds vote of the state Legislature to amend a voter-passed initiative. Second, consumer advocacy groups and trial attorneys are likely to create opposition. Last, and certainly not least, there may be a number of groups wanting to utilize this package of reforms as an opportunity to add more labeling requirements on food companies.

As we learned from Proposition 37 and the various county-by-county labeling initiatives aimed at genetically engineered food, many consumers want to know more about their food. However, it makes no sense to establish a patchwork of labeling requirements that does nothing more than create the opportunity for lawyers to cash in at the expense of farmers and ranchers.

Food labels should be consistent across the country and meaningful for consumers. All of us, as consumers, have the right to know about allergens and health benefits of the foods we consume, in order to make the best decisions. But Proposition 65, as it currently stands, accomplishes neither of these goals.

I am hopeful that with some minor revisions to the act, we can provide information for consumers and decrease frivolous, but expensive, lawsuits against our industry.



May 24, 2013

Ag Council Holds Annual Legislative Day

Ag Council Members pictured at the California State Capitol

Ag Council Members pictured at the California State Capitol

Ag Council held its annual Legislative Day on May 14 in Sacramento with a day of events giving our members the opportunity to connect with state leaders on critical issues affecting their businesses.  Thank you to all of our members who attended this important outreach event.

Morning Session Speakers

Legislative Day kicked-off with Assemblymember Luis Alejo (D-Watsonville) speaking to our members about his legislative priorities.  As Chair of the Environmental Safety and Toxic Materials Committee (ESTM), he discussed nitrate legislation to improve water quality for disadvantaged communities, which ESTM has jurisdiction over.

Assemblymember Alejo also spoke about his bill, AB 60, to allow undocumented residents who are not eligible for a social security account number to receive a driver’s license if all other qualifications are met, and they can provide proof of identity.


DeeDee D’Adamo, State Water Resources Control Board member

Newly appointed State Water Resources Control Board member, DeeDee D’Adamo, spoke to Legislative Day attendees, as well.  Previously, D’Adamo served on the California Air Resources Board from 1999-2013 and in this capacity worked closely with Ag Council on climate change regulations over the past few years.  Among other issues, D’Adamo spoke about nitrate in drinking water, and she discussed the Board’s work on the Bay-Delta Water Quality Control Plan to update flow objectives for Delta tributaries.  She urged our members to stay engaged with their local irrigation districts to remain apprised of the issues as the Plan progresses.

Next, Dr. Gina Solomon, Deputy Secretary for Science and Health at CalEPA, spoke with Ag Council’s members about Governor Brown’s Prop 65 reform plan that was revealed in early May.  Dr. Solomon said the Governor’s proposed reform plan focuses on reducing frivolous lawsuits, safe harbor levels for reproductive toxics and improving warning labels.  Dr. Solomon said the reforms must be consistent with the purposes of Prop 65 and any legislation will require a 2/3 vote in the Legislature.As background, Prop 65 was approved by voters in 1986 and was enacted with the intent to protect Californians from harmful chemicals. Prop 65 requires the governor to annually publish a list of chemicals known to the state to cause cancer or reproductive toxicity.  If a business sells a product containing chemicals listed by the state, the business must provide a clear warning to the public.  Ag Council and our members are very concerned about Prop 65 since attorneys want to extend Prop 65 warnings to food.  As such, Ag Council supports Governor Brown’s proposal.


Dr. Gina Solomon, Deputy Secretary for Science and Health at CalEPA

Ag Council will remain engaged with CalEPA and the governor’s office on this crucial issue via stakeholder meetings, which are serving as a precursor to state legislation on Prop 65.Jason Peltier, Chief Deputy General Manager with Westlands Water District concluded the morning session with a brief update about the Bay Delta Conservation Plan.  The intent of this comprehensive plan is to restore endangered fish and improve reliability of freshwater supplies diverted from the Sacramento-San Joaquin Delta.  The plan would divert a portion of the Sacramento River into two 35-mile long tunnels constructed under the Delta.

Lunch with Senator Cannella

Senator Anthony Cannella (R-Ceres) joined Ag Council members for a roundtable discussion during lunch where several issues were covered including dairy pricing, high speed rail, nitrate in groundwater and others.  The dialogue helped give our members a better understanding of these high profile state topics prior to their lobbying meetings.

Legislative Outreach & Issues

Ag Council members spent the afternoon in lobbying teams meeting with nearly 20 legislative offices.  It was a lively day in the Capitol building since Ag Council’s Legislative Day was the same day Governor Brown released his May budget revision. His revision assumes state revenues are $2.8 billion ahead of expectations, proposes a $1.1 billion reserve and emphasizes funding for public schools.  The Legislature is now considering Governor Brown’s budget revision given that the constitutional deadline to pass a state budget is June 15.


Senator Anthony Cannella (R-Ceres) speaking to Legislative Day attendees

During their advocacy meetings for Legislative Day, Ag Council members encouraged support for Governor Brown’s Prop 65 reform proposal.  Also, there has been some discussion in the Capitol about inserting a fertilizer tax in the state budget to fund water quality improvements in disadvantaged communities.  Given this, Ag Council members urged legislative offices to refrain from moving forward with any such effort in the state budget.  Instead, our members asked legislators to create a funding mechanism to improve water quality for disadvantaged communities in the revised water bond, which will be on the Legislature’s agenda after the budget is completed.

Furthermore, Ag Council members asked for support of AB 8 by Assemblymember Perea (D-Fresno) and SB 11 by Senator Fran Pavley (D-Agoura Hills) to extend the sunset dates of critical air quality programs for agriculture.  The bills include an extension of the Carl Moyer program to the year 2024.  This program provides incentive grants for cleaner-than-required vehicles, engines and equipment to achieve air quality reductions that would not otherwise occur.

In addition to the above issues, a lobbying team comprising a group of Ag Council’s dairy members advocated in favor of a bill regarding dairy pricing, AB 31, by Dr. Pan (D-Sacramento).  This bill is pending consideration in the Assembly Committee on Appropriations.


Legislative Day concluded with a reception at The Citizen Hotel in Sacramento where Ag Council members had a chance to connect with numerous elected state leaders and agency officials.

Ag Council thanks all of our Legislative Day attendees for their participation.  We greatly appreciate you taking the time out of your busy schedules to join us for this important outreach effort.

Lee Ruth Inducted into Cooperative Hall of Fame


Former Ag Council President Lee Ruth, Cooperative Hall of Fame 2013 inductee

Congratulations to former Ag Council President Lee Ruth on being inducted into the Cooperative Hall of Fame during a ceremony at the National Press Club in Washington, D.C. on May 8, 2013.  Ag Council President Emily Rooney attended the event, which is administered by the Cooperative Development Foundation to honor those who have made extraordinary contributions to the cooperative community.Lee Ruth devoted some 30 years to Ag Council where he concentrated on legislative and other strategies to boost cooperatives and promote their development.  Among his many accomplishments, he helped establish the Center for Cooperatives at the University of California, Davis, and the California Center for Cooperative Development.  In addition, his work as Co-chair of the national Rural Cooperative Development Task Force was influential in creating the Rural Cooperative Development Grant at USDA.

Lee Ruth was a key player in developing legislation favorable to electric cooperatives in California during the deregulation of utilities.  His international work includes the creation of and support for farmer cooperatives in Lithuania.
Ag Council applauds Lee Ruth for his induction into the Cooperative Hall of Fame.  This honor is well-deserved given his life-long commitment and dedicated leadership in the cooperative arena.

To learn more about Lee Ruth’s accomplishments, click HERE to watch a YouTube video.


May 4, 2013

State Legislature Hits Deadline

The Legislature was buzzing with activity this week given that May 3rd was the deadline for policy committees to hear fiscal bills. Among the many bills considered throughout the week were measures addressing dairy pricing, the water bond, CEQA and farmers’ markets. Further details are provided below.

Ag Committee Holds Dairy Hearing

This week, legislation regarding dairy pricing, AB 31, was considered in the Assembly Committee on Agriculture. The author of the bill is Dr. Richard Pan (D-Sacramento).

Photo courtesy of Tim Hearden with Capital Press.

AB 31, in its original form, would have implemented changes in the Food and Agricultural Code to set a minimum price for California milk sold to cheese manufacturers and would also provide a credit to the cheese makers. Ag Council and our dairy members supported the original text of AB 31 given that California has not kept pace with price opportunities in the formula used to price whey (a protein created when cheese is produced).

Since the original bill was strongly opposed by some entities in the cheese processing industry, AB 31 was amended to contain benign “intent” language. This was done in order to keep the bill moving–and prevent it from dying in committee–with the hope that the stakeholders can continue working together to come to agreement to move the legislation forward. The amended version of AB 31 was approved out of the Assembly Committee on Agriculture on Wednesday.

Ag Council has a neutral position on the new language because it does not provide the certainty our dairy farmers need right now. At the same time, Ag Council recognizes the importance of continuing conversations with stakeholders, and we are involved in the ongoing discussions, per the direction of Assembly Committee on Agriculture Chairwoman Susan Eggman (D-Stockton).

Water Bond Legislation

A hearing was held this past week in the Assembly Committee on Water, Parks and Wildlife to discuss three bills pertaining to the water bond, which is scheduled for the November 2014 ballot in California.

The bills are: AB 143, authored by Assemblymember Perea (D-Fresno), AB 295 by Assemblymember Salas (D-Bakersfield) and AB 1331 (an Assembly Water, Parks and Wildlife Committee bill).

The bills are placeholders for what will later become legislation to rework the existing water bond. Leaders in the Legislature have indicated that substantive discussions on the water bond will likely not take place until after passage of the state budget this year. The Legislature is expected to make reductions to the existing $11.4 billion bond in order to help aid in the passage of the bond on the 2014 ballot.

CEQA Measure Passes Committee

A bill to make changes to CEQA moved through the Senate Environmental Quality Committee this week. SB 731, by Senate President pro Tem, Darrell Steinberg (D-Sacramento), is intended to reduce project delays due to CEQA. More details about the bill are expected to emerge over the coming months.

Steinberg said he is “trying to find the middle path” and “modernize” CEQA.  Many unions and environmental groups oppose CEQA reform, which creates difficulties for the bill to pass in the Legislature.

Farmers’ Market  Bill Moves Forward

Ag Council supported AB 996 in the Assembly Committee on Agriculture this week on behalf of our members: Certified Farmers’ Markets of Sacramento and Pacific Coast Farmers’ Market Association.

The bill by Assemblymember Roger Dickinson (D-Sacramento) makes needed improvements to procedures for the direct marketing of agricultural products and Certified Farmers’ Markets (CFMs).

The measure, approved out of committee on Wednesday,  strengthens enforcement provisions relating to the operations and governance of California’s Certified Farmers’ Markets. Among other provisions, AB 996 creates a statewide certification process for direct market producers and establishes a set procedure for an operator to obtain a CFM license.

In addition, AB 996 would prohibit false or misleading claims about the origin of an ag product, the identity of producers, method of production, and the use of the phrase “California Grown” for products grown outside of the state. The bill contains a sunset provision of January 1, 2016.

Food Safety Meetings

Ag Council Allied Member, DFA of California, is holding upcoming District Meetings to highlight DFA’s new Food Safety and Quality Tools to help entities meet food safety regulations and customer requirements.

A District Meeting will be held in Fresno on May 9 at the Radisson Hotel & Conference Center at 5 p.m. and another District Meeting will be held on May 14 in Yuba City at The Plaza Room at 5 p.m. Click HERE to register and for cost information. To read more about DFA of California, click HERE.

Please contact Katie Ward (katiew@agfoodsafety.org) or Amber Bernhard (amberb@agfoodsafety.org) with any questions.

USDA Export Grants Available

The United State Department of Agriculture (USDA) recently announced it is soliciting applications for five grant programs that support ag exports.  The grants open for applications are:

Foreign Market Development Cooperator Program (Federal Register notice HERE),

Technical Assistance for Specialty Crops Program (Federal Register notice HERE)

Market Access Program (Federal Register notice HERE)

Emerging Markets Program (Federal Register notice HERE)

Quality Samples Program (Federal Register notice HERE)

Applications are due by May 28, 2013. For further assistance, Ag Council Allied Member, Morrison & Company, provides specialized grant writing for clients. Recently, 97 percent of all funding awarded in California for the USDA Value Added Producer Grants went to clients of Morrison & Company. Please contact Brent Morrison or Stacy Kennedy for more details at ph. 530.893.4764 or read more on their website HERE.

Join Us on May 14

2013LegDayPostcard.inddWe invite our members to connect with state legislators and officials at our annual Legislative Reception on May 14.

Legislative Reception May 14, 2013 5:30 p.m.-7:30 p.m. The Citizen Hotel 926 J Street Sacramento, CA 95814

RSVP by May 9 to Rebecca Osumi at ph. 916.443.4887   If you are an Ag Council member and would like details about the series of events taking place on Legislative Day (May 14), please contact Rebecca at the number above.