Two Years After Its Passage, Prop. 65 Is Beginning to Shake the Food Industry

Warning: This product may contain a chemical known to the State of California to cause cancer, or birth defects or other reproductive harm.

Anxiety has filtered through the California food industry as farmer, manufacturer and grocer alike await the soon-to-be-published regulations ordering public disclosure of potentially harmful chemicals present in foods, beverages and household products.

The mandatory warnings, for those compounds known to cause cancer or birth defects, became necessary as a result of the successful passage of Proposition 65, the antitoxics initiative, in 1986.

“I know of no worry that is greater in our business activities right now (than the pending requirements),” said Robert D. Rossio, chairman of the California League of Food Processors, at the group’s annual meeting here.

The comments came during a lengthy discussion on how the state will implement various facets of Proposition 65, officially known as the Safe Drinking Water and Toxic Enforcement Act.

Later this month, for instance, California’s Health and Welfare Agency will specify how firms should alert consumers to the presence of chemicals considered health threats. The warnings are not just limited to foods but will be required wherever chemical hazards exist, such as in the workplace or from service station gas pump fumes.

The cautionary notices will be triggered when any of the designated substances are present at levels that pose a health risk under normal product usage or exposure. The language of the warning is not yet set, but the state’s most recent proposal reads: “Warning: This product may contain a chemical known to the State of California to cause cancer, or birth defects or other reproductive harm.”

Over the past year, 235 such carcinogens and toxins have been identified by the state. Working from this listing, the food industry, among others, must determine whether any consumer warnings for their products are warranted, particularly if harmful residues exceed existing state and federal standards.

Though its effects are far-reaching for many industries, it is in the neighborhood supermarket where Californians will likely be first confronted with any Proposition 65-related warnings. Still uncertain, though, is how this cautionary information will be provided.

Among the options are warning labels on products, supermarket shelf tags indicating an ingredient hazard, large signs that encompass entire sections of a food store (such as those areas containing produce or alcoholic beverages), or the food industry’s current preference: a toll-free telephone number that the curious can call to discover whether their canned vegetables, room deodorizers or wine contains a potentially harmful substance.

A worst-case interpretation of the initiative would lead to warnings being posted throughout a grocery store, although this scenario is deemed highly unlikely according to a member of the Proposition 65 Scientific Advisory Panel, a group appointed by Gov. George Deukmejian to assist in the initiative’s implementation.

“Just about everything in a market would be labeled with warnings if there was strict compliance because there are trace amounts of these chemicals in everything,” said Wendell W. Kilgore Ph.D., a UC Davis environmental toxicologist who serves as the advisory panel’s chair. “But there are very few (of the harmful compounds) present in foods in sufficient enough levels that they will actually require a notice.”

Kilgore, whose group is continuing to compile the carcinogen and reproductive toxin list, said that the most likely hazardous chemicals in food, at present, would be nitrosamines, ethyl alcohol, some pesticides and lead.

However, Kilgore offered several analogies that illustrated the difficulty of pinpointing significant hazards in food and elsewhere. One such example went to the heart of the problem in warning about cancer agents.

“Everyone drinking chlorinated water is consuming a carcinogen,” he said. “That’s because when you chlorinate drinking water (for purity) you produce chloroform (in minute levels), and chloroform is a carcinogen.”

He noted, however, that the federal government’s standard for allowable levels of chloroform in drinking water is 100 parts per billion. The actual average, meanwhile, for the chemical in tap water throughout the country is 83 ppb.

Though there is uncertainty as to how the warning situation for foods will ultimately take shape, the state official responsible for implementing Proposition 65 gave some indication as to the final regulations at the food processors’ meeting.

Thomas E. Warriner, a Health and Welfare Agency undersecretary, said he foresees a use of both signs and toll-free numbers.

“Sometime later this year, I suspect there will be signs in the alcoholic beverage portion of the supermarket warning pregnant women that ethyl alcohol can cause birth defects,” Warriner said. “It’s also likely there will be signs in the stores or in the markets’ newspaper advertisements offering customers a toll-free number. The signs and ads will explain how this system works. Namely, people would be informed that they could call about a specific brand-name product and ask if it contains any hazardous chemicals.

“Some companies, though, may decide on their own to place a warning label on their products instead,” Warriner said.

He added that supermarket produce departments may have to post signs in that section providing a generic warning about pesticide levels and also referring concerned consumers to yet another toll-free number.

Although any formal tainting of the food supply’s safety will likely be sharply criticized by agricultural and retail interests, Warriner said it may prove beneficial in terms of imported foods.

“One of the things overlooked through this controversy is that (the warning requirement) will make foreign companies comply with (California’s) food standards,” he said, indicating that compliance presently is uncertain.

The impetus for both domestic and foreign firms to comply with Proposition 65 is steep civil penalties. Parties who fail to adequately warn the public about hazardous chemicals face a $2,500 fine for each person exposed to a violative product. The penalty is multiplied for every day the item is on the market.

Furthermore, it is consumers who are empowered by the initiative to bring products suspected of containing undisclosed carcinogens or reproductive toxins to the attention of the attorney general, district attorneys or city prosecutors. If state or local government officials don’t respond within 60 days, then the individual has the option of pursuing the case with their own attorney.

“The safety of fruits and vegetables, for instance, is the responsibility of state and federal agencies, who make sure the items are in compliance with pesticide regulations,” he said. “However, under Proposition 65, the Consumers Union, to cite just one group, could perform a laboratory analysis of suspect produce. If it does not meet our standards then they could challenge the item’s safety through the court system.”

Everybody’s an Inspector

As such, the antitoxics initiative essentially turns all Californians into food inspectors. “What this has done is deputize everyone in the state,” he said.

The mixture of signs and toll-free numbers Warriner foresees is not, however, satisfactory to some of the environmental groups that are the principal proponents of Proposition 65.

“The (food-related) requirements of the initiative call for clear and reasonable warnings, and that means labels on products,” said Al Meyerhoff, senior attorney for the Natural Resources Defense Council in San Francisco. “Wine is a good example. There is no dispute that ethyl alcohol, consumed by pregnant women, can cause birth defects. Now if pregnant women were the only buyers of wine, then a sign would be an effective warning. But the buyer may not be the only consumer. And that’s why you need the information on the bottle.”

Meyerhoff also said a toll-free number is an inadequate warning system for consumers. He indicated that his group would file suit to overturn such a program if it’s included in the pending regulations.

“The reason Proposition 65 was adopted was that people don’t trust government to protect us from chemicals in food,” Meyerhoff said. “But the objective now is not a supermarket full of warning signs. There are effective substitutes for many of these compounds that cause cancer. And so we’re trying to force out of the food supply those chemicals that are carcinogens and reproductive toxins. Rather than worrying about warning signs, the food industry should be trying to eliminate the risks.”

The Cost--and Who Will Pay

For their part, the food processors league is opposed to any warnings--whether on labels or elsewhere. The opposition is based on the belief that California’s activity in this area is superceded by federal food safety regulations. Consequently, a product that conforms with U.S. chemical residue laws should not be required to carry any state-mandated cancer or birth defect message, according to Lawrence K. Taber, league president.

Although the leaque is not recommending any particular response to the pending state regulations, most of its members are aware of the proposed 800-number system. Participating in this type of program, however, will be costly. Fees will correspond to a company’s revenue.

A firm with $20 million in sales, for example, will be charged $10,000 a year to join. The company will then be assessed a $2 charge for every call the system receives regarding one of its products, Taber said.

There will also be the costs of supplying information on the chemicals present in a company’s entire line. Taber estimates that the total expense for participating in the system, including a firm’s own labor costs, will be $120,000 the first year for a company in the $20-million sales range.

“Complying with this initiative will cost the industry millions, if not billions of dollars. Why not spend this money on real problems such as microbiological contamination?” he asked. “The proponents of Proposition 65 said that there will be no costs to the consumer as a result of implementation. Well, whatever these expenses ultimately turn out to be, they will in fact be passed along to the public (in the form of higher food prices).”