In 1986, California voters passed Proposition 65, which, in part, requires food companies to provide warnings on food products if the use of the products would expose California consumers to “chemicals known to the State of California to cause cancer, birth defects or other reproductive harm.” In turn, California Sen. Ricardo Lara (D-Bell Gardens) recently introduced a resolution in the California legislature to officially declare “processed meat” to be carcinogenic.
If the resolution is passed, the California agency responsible for overseeing Proposition 65 (the Office of Environmental Health Hazard Assessment) would be urged to add “processed meat” to the Proposition 65 list of chemicals, thereby requiring processed meat to carry warnings. Pursuant to Proposition 65, if a food product fails to carry a required warning, consumer groups, private citizens and/or plaintiffs’ lawyers can bring lawsuits seeking to recover steep civil fines and attorney fee awards.
No food product, it seems, is immune. So far this year, there have already been more than 100 notices of alleged violations served by plaintiffs’ lawyers on food companies for allegedly failing to provide required Proposition 65 warnings on their products. The chemicals appearing most often in food include acrylamide, arsenic, lead and cadmium. Some chemicals, such as acrylamide, are actually formed when the food products are heated and cooked.
Fortunately for the meat industry, California’s attempt to add “processed meat” to the Proposition 65 list of chemicals is likely illegal. This is because the Federal Meat Inspection Act (FMIA) exclusively governs the formulation and labeling of meat products sold in interstate commerce. Under 21 U.S.C. 687, the FMIA’s express preemption provision, individual states are prohibited from imposing any labeling requirements on meat products which are “in addition to” or “different than” those required by federal law. For this reason, even if the California “processed meat” resolution were to eventually pass, any future lawsuit brought against a meat processor for allegedly failing to provide a Proposition 65 warning on its product label would likely be thrown out by the courts on federal preemption grounds.
Although processed meats will likely survive the latest attack, the attempted California resolution should stand as a reminder to food companies of the importance of adopting proactive marketing and communication strategies for the customers in their markets. Rather than become fearful, all food companies should embrace attempts such as the one in California as an opportunity to respond to meritless accusations and remind the public about the positive attributes of the wholesome products they proudly process and sell. NP
