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Fears of California labeling nightmare may be unfounded when it comes to food.

Fears of California Labeling Nightmare May be Unfounded When it Comes to Food

Vitamin A a reproductive toxicant? That's how it may end up being listed under California's Proposition 65, which is creating a regulatory nightmare for the food industry.

Passed in 1987 as a referendum, and therefore protected from amendment by the State Legislature, the proposition requires food products carry warning labels for identified carcinogens (cancer-causing agents) as well as reproductive toxicants (agents causing birth defects).

Why Vitamin A? A product must be subject to a public warning unless it contains 1,000 times less of a reproductive toxicant than whatever amount would cause birth defects--and the RDA (recommended daily allowance) of Vitamin A is well above that threshold.

Delegates attending the recent Western Frozen Food Convention were treated to that sort of revelation by Gary Kushner, a lawyer representing (among others) the American Frozen Food Institute and the Grocery Manufacturers of America; and Burt Willis, director of government relations of Campbell Soup Co.

A lot hasn't changed in a year. The food industry still has a suit pending to have Proposition 65 declared unconstitutional on the grounds that the federal government has pre-empted the field of food regulation. Another suit by labor and consumer groups seeks to have Proposition 65 enforced more vigorously.

Food industry lobbyists were trying to get the Reagan administration to issue an executive order of some kind declaring federal jurisdiction in the matter, "but the bell rang and we weren't near the goal line," Willis lamented. Congress could pass legislation overturning Proposition 65, but the fact California has the largest House delegation makes this less likely.

Federal law already makes it explicit that U.S. Department of Agriculture (USDA) regulations on meat and poultry pre-empt state and local jurisdiction--in fact, said Willis, the USDA barred a label proposed for chicken products under Proposition 65. But it is the FDA that regulates most food products, and the law isn't clear on preemption there: that's what the industry suit is about.

Meanwhile, California enforcement procedures are proceeding. Interim regulations on carcinogens create a standard of "quantitative risk assessment" based on one excess case of cancer per 100,000 people over a lifetime exposure. How is that risk to be determined for any particular ingredient or additive? Don't ask, advised Kushner -- nobody knows. Standards have been set for such reproductive toxicants as lead and ethylene oxide, and studies are under way on ethyl alcohol, carbon disulfide and aspirin, as well as Vitamin A.

One current dispute is over what constitutes a "warning" to the public. The industry supports a toll-free 800 number, which people can call up to ask about hazardous substances in food products. But consumer activists, led by leftist State Sen. Tom Hayden (You know, Jane Fonda's estranged husband), don't think that's enough and are insisting on warning labels. But labeling opens up a whole can of worms: national brand manufacturers having to change packaging just for California, out-of-state chains having to do the same for private label products.

Also, such other states as Massachusetts, New York and Hawaii are considering legislation similar to Proposition 65 -- Massachussetts' version even forbids an 800 number, and also bars any sort of scientific advisory council (such as that appointed in California) to define standards and evaluate risks. Some California legislators are pushing for another referendum to ban all pesticides, and such media as USA Today are running scare stories to the effect that thousands of children are being poisoned. Both laws and lawsuits are bound to proliferate: "This has been an absolutely wonderful thing for lawyers," Willis said.

Good Post-Convention News

But perhaps the food industry is worrying too much. After the Western FF convention, word came via an article in the journal Science that perhaps fewer than 20 consumer products will be required to include warning statements on labels to comply with the controversial Proposition 65. And food items are not likely to be among them, wrote Thomas Warriner, head of California's Health and Welfare Agency.

"If we had a food product that was risky, we would have taken it off the market," he spelled out in no uncertain terms. As the man responsible for implementing the state's tough antitoxic law, the tone of his article should give national packers reason to relax.

Warriner dismissed as "rubbish," the calculation put forth in "one creative economic analysis" suggesting that up to 90,000 food products would be required to publish statements on labels to comply with California law.

PHOTO : Addressing the Proposition 65 issue at the Western FF Convention are (l-r): Bert Willis,

PHOTO : director of government relations of Campbell Soup Co.; Steven C. Anderson, executive vice

PHOTO : president of the American Frozen Food Institute (AFFI); Gary J. Kushner, AFFI's general

PHOTO : counsel.
COPYRIGHT 1989 E.W. Williams Publications, Inc.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1989 Gale, Cengage Learning. All rights reserved.

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Publication:Quick Frozen Foods International
Date:Apr 1, 1989
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