Ruling Could Lead to Cancer Warnings on More Products

In a ruling that could lead to cancer warnings on a variety of products, a Superior Court judge Friday threw out a state regulation exempting foods, drugs and cosmetics from the requirements of Proposition 65.

Judge Ronald B. Robie ruled that the manufacturers of foods, drugs, cosmetics and medical devices must comply with the state’s antitoxics law and warn the public whenever their products pose a significant risk of causing cancer.

Robie’s decision is a major victory for organized labor and environmentalists, who had accused Gov. George Deukmejian of creating a huge loophole in Proposition 65 to benefit the four major industry groups.

Spokesmen for the Grocery Manufacturers of America, however, said they will appeal Robie’s ruling, a move that could once again delay consumer warnings on products that contain cancer-causing chemicals.

Representatives of the food manufacturers insist that their products are safe, but acknowledge that some foods contain small amounts of cancer-causing chemicals that could require warnings under the California law.

Ever since the passage of Proposition 65 in 1986, environmentalists have sought to require the food, drug and cosmetic industries to remove any carcinogenic substances from their products or provide the required warning.

“As a result of the court’s action, many thousands of consumer products will now come within Proposition 65’s protections against avoidable cancer risk,” said Al Meyerhoff, an attorney with the Natural Resources Defense Council. “Another of the hurdles erected by the governor to implementation of this important law has been shattered, and the potential of Proposition 65 is finally becoming a reality.”

Under Proposition 65, businesses must provide a warning if they expose the public to substances that pose a “significant risk” of causing cancer.

But after intense lobbying pressure from the four industries, the Deukmejian Administration adopted the regulation in 1987 that exempted products from the law if they met existing federal standards, such as regulation by the Food and Drug Administration.

Environmentalists contend that federal regulation of the food supply is not adequate, noting that the FDA does not set standards for a variety of toxic chemicals that are regulated by Proposition 65.

In his decision, the judge sided with the environmentalists and ruled that the state’s exemption is not consistent with the goals of the antitoxics initiative.

The “state has created a categorical exemption from the warning law for selected industries without specific regard to the chemicals involved,” Robie wrote, adding that the regulation “is invalid on its face.”

Administration officials had no comment on the judge’s decision and said they were uncertain whether they would pursue an appeal or draft a substitute regulation.

But Jeff Nedleman, a spokesman for the grocery manufacturers, said the industry will not only appeal Robie’s decision but will continue pushing for federal action to preempt Proposition 65 entirely.

“Our basic problem with Proposition 65 is that it establishes its own separate and distinct system of regulating the food supply, which is different from the federal system,” Nedleman said. “People who manufacture food products don’t want questions needlessly raised about the safety of their products.”

Until now, the most visible effect of Proposition 65 has been warnings in bars, stores and restaurants about the dangers of alcohol and tobacco. But advocates of the law predict that Robie’s decision could lead to significant changes in the food supply.

“This provides a chance for the first time for the act to work the way it was intended to act,” said Stephen B. Berzon, an attorney for the AFL-CIO, which also joined in bringing the suit.

Added attorney David Roe of the Environmental Defense Fund, another party in the lawsuit: “Now we’ll find out what the food industry was trying to hide--either that or they’ll take it out of the food. This is a crucial victory for Proposition 65. The food ought to be as clean as everything else.”