Food, Drug, Cosmetics Firms Seek Prop. 65 Warning Label Exemption

Manufacturers of over-the-counter drugs and cosmetics joined the food and beverage industry Monday in pleading for blanket exemptions from the warning label requirements of Proposition 65, the antitoxics initiative approved by voters in November.

In arguments presented at the first of two hearings before the state Health and Welfare Agency, industry lobbyists and lawyers contended that consumers are already protected by existing federal and state regulations against products that might cause either cancer or birth defects.

The petitions on behalf of the drug, cosmetics and food and beverage industries are the first requests for broad exemptions to the popular ballot measure. The way Gov. George Deukmejian and his Administration ultimately react to them is seen by all sides as an important test of how the tough new antitoxics law is implemented.

Environmental and consumer groups attacked the exemption proposals as violating the spirit of Proposition 65. They pointed to a long, industry-produced list of commonplace foods that was intended to show that thousands of products would have to be labeled because of traces of cancer-causing chemicals.

The industry list included apples and bananas, which contain detectable amounts of arsenic, and tomatoes and oranges, which contain chromium and lead.

Proposition 65 supporters argued Monday that the list was evidence that more information is needed about the state’s food supply and that no exemption should be granted.

Said James Wheaton, an attorney for the Center for Public Interest Law: “As someone who enjoyed milk in his cereal this morning, I want to how much PCB (polychlorinated biphenyl, a suspected carcinogen) is in there.”

But food industry representatives argued that they could not as a practical matter conduct expensive tests for hundreds of hazardous chemicals in an estimated 15,000 food products available to consumers.

“There never has been nor can there ever be a total chemical analysis of the entire American food supply,” insisted Sherwin Gardner, vice president of the Grocery Manufacturers of America.

However, to protect themselves against legal action under Proposition 65, the food product manufacturers would have to warn the public about even insignificant amounts of suspect substances unless the exemption is granted, Gardner said.

Restaurant owners would have to put warning labels on menus or post signs on their premises, but rather than do so would avoid certain foods entirely, said representatives of the California Restaurant Assn. Or they could simply put up signs that stated, “caveat (beware), eater,” joked association general counsel Jo-Linda Thompson.

But those who opposed the requests for Proposition 65 exemptions argued that if risks are truly insignificant, the industry groups would not have to issue warnings to consumers.

‘Need Not Worry’

“If their assertions are true, they need not worry,” Wheaton contended.

Health and Welfare Agency Undersecretary Thomas E. Warriner, who conducted the hearing, told a reporter: “We have doubts that warnings would reach that many foods.”

Under Proposition 65, the governor is required to develop a list of chemicals known to the state to cause either cancer or birth defects. A year after a substance is listed, businesses must warn consumers of exposure to significant amounts of that chemical.

Twenty months after listing, businesses are barred from discharging significant amounts of the chemical into drinking water supplies. Those that fail to comply with the warning or discharge requirements face citizen suits and fines of up to $2,500 a day per violation.

In February, Deukmejian issued a preliminary list of 29 chemicals to be covered by the initiative. In April, however, a Sacramento County Superior Court judge ordered him to add an additional 201 chemicals. Deukmejian has appealed that ruling.

But even Deukmejian’s short list, which contains such ubiquitous chemicals as arsenic, benzene, chromium and lead, could affect thousands of foods and household products.

Low levels of lead compounds are contained in hair dyes, but at levels that have been ruled safe by the U.S. Food and Drug Administration, according to a petition for exemption filed by the Cosmetic, Toiletry and Fragrance Assn., a trade group representing manufacturers and distributors of cosmetics.

Similarly, the Proprietary Assn., representing manufacturers of over-the-counter drugs, argued that its members’ products are regulated by the FDA and that states are precluded from adding further warning requirements of their own by federal statute.

A second hearing on the industry requests for exemptions is scheduled today in Los Angeles. Health and Welfare Undersecretary Warriner said that his agency will continue to take written testimony until the end of the month and will rule on the petitions by the end of July.