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California Sues Makers of Potato Chips, Fries

When Congress got rid of the controversial Delaney Clause by passing the Food Quality Protection Act in 1996, most Americans got rid of a problem. But California has a Delaney-like law, and Californians continue to suffer Delaney-like problems.

The latest occurred in August, when California Attorney General Bill Lockyer filed suit against nine manufacturers of potato chips and french fries. He is seeking a court order that will require them to warn consumers that their chips and fries contain acrylamide, a chemical “known by the state to cause cancer.”

“In taking this action, I am not telling people to stop eating potato chips or french fries,” Lockyer said in an Aug. 26 press release announcing the action. “I know from personal experience that, while these snacks may not be a necessary part of a healthy diet, they sure taste good. But I, and all consumers, should have the information we need to make informed decisions about the food we eat.

“Proposition 65 requires companies to tell us when we’re exposed to potentially dangerous toxins in our food. The law benefits us all, and as attorney general, I have a duty to enforce it.”

Proposition 65 is California’s equivalent of the “Delaney Clause.”

The action was filed in Los Angeles County Superior Court. Lockyer’s complaint alleges the companies violated Proposition 65, a ballot initiative enacted by California voters in 1986. The law requires businesses to provide “clear and reasonable” warnings before exposing people to known carcinogens or reproductive toxins.

The defendants in the lawsuit are: Burger King, Cape Cod Potato Chips, Frito-Lay, H.J. Heinz (Ore-Ida), Kettle Foods, KFC, McDonald’s, Procter & Gamble and Wendy’s.

Acrylamide has long been known to exist in industrial products, and since 1990 it has been on the Proposition 65 list of carcinogens. In early 2002, scientists in Sweden discovered that certain starchy foods cooked at high heat – by baking, roasting or frying ¬– contain acrylamide.

Subsequent research confirmed that acrylamide is present in many cooked and heat-processed foods, including fried and baked snack foods, roasted asparagus, canned sweet potatoes and pumpkin, canned black olives, roasted nuts, coffee, roasted grain-based coffee substitutes, prune juice, breakfast cereals, crackers, cookies, breads and toast. It’s also in tobacco smoke.

The lawsuit asks the court to require warnings on potato chips and french fries because they have higher levels of acrylamide than other foods, Lockyer said.

Since the 2002 discovery, the World Health Organization (WHO), the U.S. Food and Drug Administration (FDA) and California’s Office of Environmental Health Hazard Assessment (OEHHA) have studied the issue.

OEHHA has initiated formal rulemaking proceedings to determine the extent to which it believes warnings should be required on food products containing acrylamide.

Lockyer said he intends to work with defendants in the case to find a way to effectively give consumers information about the acrylamide in their products, while at the same time preventing undue public alarm and unnecessary warning signs concerning foods that contain insignificant amounts of the chemical.

The attorney general’s action is not the first to seek consumer warnings for these foods. Private suits were filed in 2002 by the Committee for Education and Research on Toxics (CERT), on Aug. 3 by Environmental World Watch (EWW) and on Aug. 25 by the Environmental Law Foundation (ELF).

Lockyer agreed that the potato chips and french fries made by the defendants in his lawsuit have not been shown to contain more acrylamide than their competitors’ products. The firms were named as defendants, he explained, because they were the companies targeted in the actions filed by EWW, ELF and CERT. Lockyer said he will ask that all pending suits be assigned to the same judge.

Under Proposition 65, a private party intending to file a lawsuit must first notify the attorney general’s office. The attorney general may sue the same defendants. If he does, his office typically takes over prosecution of the case.

Industry Reaction

Lockyer’s action brought reaction. The Grocery Manufacturers Association (GMA) responded with a statement on behalf of a food industry coalition, including the U.S. Potato Council.

“Acrylamide is present in food as a natural byproduct of the cooking process,” according to GMA. “Because it occurs when natural constituents of foods are cooked or heated, it has been present in the food supply and safely consumed since human beings discovered that cooked food tastes good and is often safer than the raw form.

“Acrylamide is present in 40 percent of the calories consumed in the average American diet – in foods ranging literally from soup to nuts and including prunes, olives, baked potatoes, as well as chips and fries, crackers, coffee, asparagus, cereals and many other foods that are part of a normal healthy diet.

“Implementation of Proposition 65 was entrusted by the voters and the governor to OEHHA. It has a record before it that provides a far broader spectrum of views and expertise on acrylamide and food safety than the litigation process would ever allow. That record supports the conclusion already reached by FDA, WHO and many other health and nutrition experts: that current evidence does not support the conclusion that a change of diet or warnings are appropriate for this natural byproduct of cooking.

“We believe that the natural constituents of foods (whether formed by the sun’s heat on the growing plant or by the stove’s heat on the grown plant) should not be regulated by Proposition 65. Indeed, the voters did not intend that there be meaningless warnings on a substantial portion of the food supply that people have been safely consuming for thousands of years.

“We strongly believe that a food that would not be subject to Proposition 65 in its raw form should not be the subject of a Proposition 65 warning solely because it is cooked or heated.”

The American Council on Science and Health (ACSH) said the lawsuit is “unfortunate and contrary to the interest of public health.” ACSH said that acrylamide has not been demonstrated to be a human carcinogen, and endorsed the GMA statement.

“At first glance, it seems that the (attorney general) is trying to protect consumers, but his lawsuit could have the opposite effect,” said Gilbert Ross, ACSH medical director. “The proliferation of warning labels mandated by the suit, if it were thoroughly enforced, would be quite counterproductive. Consumers would become ‘warning-weary’ and not pay attention to warnings that point to real dangers, such as those on cigarette packages.”

Several critics have criticized Lockyer’s action because he chose to target potato foods and ignore the others. Like the Delaney Clause, Proposition 65 does not permit this kind of selective enforcement.

The Delaney Parallel

In 1958, the Delaney Clause was included in the Food Additives Amendment to the Federal Food, Drug and Cosmetic Act. It stated that no food additive (including pesticides) could be considered safe if found to induce cancer when ingested by man or animal (a zero cancer risk standard).

The Delaney Clause required EPA to consider only a pesticide’s risk and not to consider any offsetting benefits. It mandated a “zero risk” standard, implying that no food additive is likely to offer benefits sufficient to outweigh any risk of cancer.

The “zero-risk” standards of the Delaney Clause make carcinogenic additives illegal, without regard to other characteristics of product use, such as other health risks or benefits.

In practice, EPA decided to regulate all pesticide residues using criteria known as “negligible risk,” and to ignore the criteria for setting tolerances that require “zero risk.” This policy was challenged in the courts, since EPA was not following the law. In July 1992, the EPA policy was overturned.

When Congress passed the Food Quality Protection Act in 1996, the Delaney provision was thrown out and new ways of assessing risks and benefits were introduced.

Under Proposition 65, there also are no acceptable concentrations established for any listed chemical in any given product.

Originally posted Saturday, Apr. 7, 2007

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