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Jeanette Suarez: Voluntary retail food warning program

It’s The Law

Posted: November 26, 2009 8:07 p.m.
Updated: November 27, 2009 4:55 a.m.
The Office of Environmental Health Hazard Assessment (OEHHA) recently drafted proposed regulations calling for a voluntary “retail food warning program.”

This program calls for food manufacturers and retailers to post all warnings on a Web site and continuously provide updates about new food products that contain any chemical compounds identified under Proposition 65 and deemed harmful.

The program requires retailers to check the Web site every 90 days and to post signs identifying the toxic compounds next to all affected food products.  

In 1986, California voters approved Proposition 65 to promote clean drinking water and to keep toxic substances that cause cancer and birth defects out of consumer products. Proposition 65 prohibits businesses from knowingly discharging listed substances into drinking water sources, or onto land where the substances can pass into drinking water sources.

It also prohibits businesses from knowingly exposing individuals to listed substances without providing a clear and reasonable warning. Since the enactment of Proposition 65, companies have redesigned their product warning labels regarding Proposition 65’s list of hazardous substances.  

The proposed OEHHA regulations are in response to a 2005 court ruling concerning mercury amalgam dental fillings. In Barnes v. Kerr Corp., (2005) 418 F3d 583, David Barnes, a dentist in Tennessee, sued Kerr Manufacturing, an amalgam manufacturer with its principal place of business in California, for mercury poisoning from use of Kerr amalgams at his practice.

The federal Sixth Circuit of Appeals found that the warning associated with the product sufficiently notified Barnes that mixed dental amalgam was dangerous. The ruling stipulated that all consumer products sold in California must have easily accessible warnings about chemicals they contain that are on the state’s extensive Proposition 65 list of hazardous substances.

A proponent of the proposed regulation, Sam Delson of the Health Hazard Office said the “retail food warning program” is designed “to develop safe harbor regulations ... to assist manufacturers and retailers and protect them from having to respond to individual cases in court.”  Although some food industry groups agree such a regulation is needed to shield against a growing number of lawsuits, others are calling this requirement costly and cumbersome. For example, the regulation calls for warnings for every product that contains any level of a Proposition 65 substance, even if it is less than the existing limit.

Rob Neenan, vice president of government affairs for the state League of Food Processors said, “giving warnings for each and every trace compound is not workable.”  

Jeanette Suarez is an associate with Poole & Shaffery, LLP, a law firm which provides general counsel and litigation services to businesses, community associations and management personnel. Her column reflects her own views and not necessarily those of The Signal. “It’s The Law” appears Fridays and rotates between members of the Santa Clarita Valley Bar Association. Nothing contained herein shall be or is intended to be construed as providing legal advice.


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