Metropolitan News-Enterprise


Tuesday, July 17, 2018


Page 3


Court of Appeal:

No Proposition 65 Warning for Carcinogenic Chemical in Cereal


By a MetNews Staff Writer


Cereal companies are not required to label their boxes with a Proposition 65 warning, even though many cereals contain acrylamide, because the warnings would be an obstacle to the federal government’s attempts to encourage people to eat whole grains, the Court of Appeal for this district said yesterday.

The opinion by Justice Victoria G. Chaney of Div. One directs the Los Angeles Superior Court to vacate the denial of summary judgement by Judge Kenneth R. Freeman. The case was brought by Richard Sowinski, who claimed that the defendants—Post, General Mills, and Kellogg—were violating Proposition 65.

Those warnings are found on commercial goods that include certain chemicals which have been determined by the state to cause cancer, birth defects, or other harm. Acrylamide has been on the list of such chemicals since 1990.

The chemical has uses in molecular biology but was discovered in 2002 by Swedish researchers to be naturally present in carbohydrate-rich foods that have been baked, roasted or fried.

FDA Letter

In 2003, the U.S. Food and Drug Administration (“FDA”) sent a letter to the California Office of Environmental Health Hazard Assessment (“OEHHA”) explaining that it was still studying the effects of the acrylamide present in food.

The letter cautioned the OEHHA that requiring food to be labeled as potentially dangerous would be confusing and misleading to consumers, whom the FDA actively encourages to eat fiber-rich foods such as cereals and whole grains. It also explained that the FDA believed the Proposition 65 requirement, as applied to foods with the chemical, would be preempted.

After continued study by the FDA and correspondence between the agencies, the OEHHA has posted guidelines for reducing acrylamide consumption on its website but has not required the warning on foods containing the compound.

zSummary Judgment Motion

In their motion for summary judgement, the cereal companies asserted both express and conflict preemption. Freeman denied the motion on both grounds, but the defendants appealed only from the ruling on conflict preemption.

Chaney noted that Freeman had focused only on the first strand of conflict preemption, which allows federal law to trump state law when it is impossible to follow both. The trial judge had correctly determined that, because there was no specific rule on acrylamide at the federal level, there was no impossibility of following both state and federal law.

“But,” Chaney explained, “by requiring Petitioners to identify a conflicting federal acrylamide warning or a formal prohibition on a Proposition 65 warning for acrylamide, the court applied only the impossibility strand of conflict preemption and failed to consider obstacle preemption.”

She pointed out that administrative agencies like the FDA have a unique understanding of the areas in which they work, and that courts should “give weight to the determinations of the agency charged with administering the federal statutory and regulatory scheme…”

Deference Not Accorded

She continued:

“The trial court was entitled to ignore the FDA’s legal conclusion that Proposition 65 as applied to acrylamide is preempted by its regulatory scheme….But it should have given weight to the FDA’s analysis and concerns regarding a Proposition 65 warning and the obstacles it would pose to the fulfillment of its statutorily-driven dietary goals.”

Because the FDA had clearly communicated the federal goals of encouraging whole grain consumption to the state of California in 2003 and had never indicated a change in strategy, Chaney indicated that those goals were still in place.

She said:

“We conclude that Petitioners’ summary judgment motion papers established that a Proposition 65 warning for acrylamide on breakfast cereals would pose an obstacle to the federal scheme and therefore is preempted by federal law.”

The case is Post Foods, LLC v. Superior Court, B284057.


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