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California's Prop. 65 may become losing Proposition

Congress may vote to kill all state food label warning laws, endangering especially those in California.

California’s consideration of three prospective Proposition 65 labeling schemes for foods containing acrylamide—and a lawsuit against major food companies filed last August by the state attorney general—are driving congressional action on a state food labeling pre-emption bill.

A House bill setting aside all state laws mandating food warning labels was introduced last October and had gobbled up 200 Democratic and Republican co-sponsors by Thanksgiving. That National Uniformity for Food Act (H.R. 4167) is likely to pass the House in early 2006 and move on to the Senate where Sen. Richard Burr (R-SC), who was chief sponsor in the House for three Congresses, is likely to lead the charge.

The bill’s primary target is Proposition 65, the 1986 California law, whose latest food chemical villain is acrylamide. That chemical is present in many kinds of cooked and heat-processed foods, including French fries, potato chips, other fried and baked snack foods, and bread, to name only a few of the foods in its sights.

Acrylamide is the driver

Acrylamide was listed as a carcinogen on the Prop. 65 list—which now contains 775 chemicals—in 1990. But that was because of its use in industrial products. In 2002, Swedish researchers discovered that acrylamide forms during the baking, frying, or roasting of certain kinds of foods, particularly starchy foods. That was the stimulus for California to consider enforcing the label warning requirement, in effect since 1990, for foods.

When a chemical is listed as a carcinogen or reproductive danger under Prop. 65, it is up to companies using that chemical in a product to voluntarily warn consumers of its inclusion in their product. California does not prescribe the warning statement, as the Food and Drug Administration might. Neither does the state check to see if products contain warnings.

What would force a food company to put a Prop. 65 warning label on a product would be a successful lawsuit brought by the California attorney general, a local district attorney, private individuals, or one of the increasing number of Golden State law firms dedicated to Prop. 65 labeling cases. Allan Hirsch, deputy director, external and legislative affairs at the California office of environmental health hazard assessment (OEHHA), says the state does not keep a list of which food products use Prop. 65 warnings on their labels.

Companies sued

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