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in the KNOW

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

 Prop65

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.