Judge Favors Voiding Prop. 65 Food, Drug Exemption

A Sacramento Superior Court judge indicated Tuesday that he is likely to throw out a state regulation that exempts foods, drugs and cosmetics from the requirements of California’s antitoxics law.

In a tentative decision, Judge Ronald B. Robie said the regulation granting the exemption is “not consistent” with Proposition 65 and therefore “is invalid on its face.”

But Robie withheld final action to scrap the controversial regulation until attorneys representing the state, environmentalists and industry groups can file another round of written arguments.

Removal of the exemption, which is sought by environmentalists and organized labor, would lead to consumer warnings for products that pose a “significant risk” of causing cancer or reproductive harm.

Representatives of the food, drug and cosmetics industries have fought hard to keep the exemption, but they have refused to say what products, if any, would fail to meet the standards of Proposition 65.

The state Health and Welfare Agency, after persistent lobbying by the Grocery Manufacturers of America and other industry groups, adopted the regulation in February, 1988, granting an exemption to all foods, drugs, cosmetics and medical devices that meet existing federal standards. The products are all regulated by the federal Food and Drug Administration.

But California environmentalists contend that loopholes in the federal regulatory system allow consumers to be exposed to hazardous chemicals, particularly pesticide residues, in some of the products.

In some cases, environmentalists argue, federal standards are more lax than Proposition 65, which requires that there be “no significant risk.” They point out that the FDA does not test food for the presence of some chemicals identified by the state as causing cancer or reproductive harm.

“The FDA regulations have loopholes that Proposition 65 is designed to close,” said David Roe, an attorney with the Environmental Defense Fund and a co-author of Proposition 65. “If the judge rules the way he is leaning, it will close those loopholes.”

The Grocery Manufacturers of America have argued that the nation’s food supply is safe and that the FDA has done a good job of regulating the industry.

Jeff Nedelman, a spokesman for the food manufacturers, said the industry is fighting to keep the exemption because it believes that food should be regulated solely by the federal government without interference from individual states.

“We’re trying to protect the confidence of the American people in the food supply,” he said.

State officials have long insisted that their regulation is not a blanket exemption for foods, drugs, cosmetics and medical devices because Proposition 65 will still apply to those products that do not meet federal standards.

But Robie quickly dismissed the contention, saying from the bench, “You have to call it an exemption because that’s what it is.”

A decision to strike down the regulation would be a major victory for the AFL-CIO, the Environmental Defense Fund, the Natural Resources Defense Council and other environmental groups that brought the lawsuit.

Earlier this year, the same labor and environmental coalition won a decision from Robie ordering the state to consider whether as many as 200 chemicals should be added to the list of 279 substances so far identified by the state as causing cancer or reproductive harm.