Almost as many food companies this year have been caught up in California’s Proposition 65 cancer and toxic warnings than during all of last year.
Speaking last week in Chicago, Food Industry Counsel Shawn Stevens said so-called “60-day” notices were filed against 308 food companies so far in 2019, compared to 330 during all of 2018.
Amendments to Prop 65 that stem from 2016 took effect on Aug. 30, 2018, with changes involving the “clear and reasonable ” warning requirement for labels and signs that may be required to bring a business into compliance.
Adopted by voters with a 2-to-1 margin in 1986, Prop 65 or the Safe Drinking Water and Toxic Enforcement Act as now amended requires the disclosure of the type of chemical and exposure on covered products. Notices must disclose whether the warning is about the risk of cancer, reproductive toxins, or both.
Stevens said Prop 65 casts a very large net. Any retailer of a product in California with 10 or more employees along with their brands, manufacturers, and distributors can all be subject to the labeling and signage requirements.
And Prop 65 enforcement is not entirely in the hands of the Office of Environmental Health Hazard Assessment, commonly referred to as OEHHA. This is because private parties, which usually means attorneys and/or non-governmental organizations are able to bring a compliance action, which may trigger fines for non-compliance of up to $2,500 per day.
The retailer/brand/manufacturer might not be aware of a compliance issue until a 60-day notice is filed against them. The notice is a legal document that alleges violations of Prop 65’s warning requirements.
The notice also goes to public prosecutors who can opt to take up the case. More typically the 60-day notice results in settlement negotiations. After a settlement is reached, a mandated reformulation or defined limit may be suggested.
Last year, even before the new amendments took effect, the Seattle-based Starbucks Corp. was ordered by a Los Angeles judge to put a Prop 65 cancer warning on the coffee it sells in California. Roasting coffee — and burning toast — produces cancer-causing acrylamide. Not until 2002 was it known that some cooked foods contain the organic chemical compound.
About 90 other companies including McDonald’s and Dunkin’ Donuts selling coffee in California fell under the same ruling.
Prop 65 experts like Stevens say food companies doing business in California should check their own products against the OEHHA list of chemicals known to cause cancer, birth defects or other reproductive harm. It’s updated at least once a year and includes about 900 chemicals. Businesses are also prohibited from knowingly discharging significant amounts of listed chemicals into sources of drinking water.
If there is a match, the next step is likely a full-blown “risk assessment.” After that, the warnings that do kick in might be satisfied by point-of-sale signage or even store shelf labeling. The new amendments require the signage or warnings to include the yellow triangle symbol, specific fonts, and the OEHHA website address for more information.
“The best way to look at it, ” says another Prop 65 expert, is that Prop 65 is a labeling exercise.”
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