The small Ohio company that makes Wheatena is being sued under California Prop 65 for not slapping a cancer warning label on its nutritious, health-promoting breakfast fare. The absurdity of this lawsuit -- and of Prop 65 -- is bringing to center stage a basic regulatory question: should individual states be able to determine their own warning labels on food, or should there be national standards for foods, set by the Food and Drug Administration?
California Prop 65, passed by an overwhelming state-wide vote in the mid-1980s, requires warning labels on products containing chemicals "known to the state of California" to cause cancer or reproductive harm -- even if the evidence of such harm is based only on high-dose studies on laboratory animals.
On one side of the debate we have famed food and drug attorneys like Peter Barton Hutt joining with Georgia Senator Saxby Chambliss, supporting the National Uniformity for Food Act. On the other side, California Senators Barbara Boxer and Dianne Feinstein reject the bill, maintaining that California has the right to warn its citizens about "dangerous" ingredients in foods like Wheatena.
Consider the facts:
First, Prop 65 mandates that Wheatena -- when sold in California -- have a label stating that the product contains a chemical linked, somehow, to cancer. The chemical in question here is acrylamide, which forms naturally when carbohydrates in foods are heated to high temperatures by being baked, roasted, fried, or toasted. Acrylamide has been shown to cause cancer in high doses when fed to laboratory rodents. So have myriad other naturally-occurring chemicals, but California law gives a free pass to "natural" carcinogens and focuses only on "synthetic" chemicals that cause cancer in animals -- even though in this case the compound is formed naturally through cooking. There is no evidence to suggest that acrylamide in food poses any risk whatsoever of cancer in humans. Thus Prop 65 is targeting a purely hypothetical risk.
Second, if the Wheatena manufacturer is required by California to post a cancer warning label, the logistics for national distribution become a nightmare. How do you have a label on food being shipped to one state and no label on the shipments to the other forty-nine states? If California Prop 65 trumps the Food and Drug Administration (FDA), it is likely that the only way Wheatena can comply is to put the label on all products to be distributed in the United States, in case a shipment is destined for shelves in California.
Third, the FDA agrees with the overwhelming majority of mainstream scientists that there is no need for labeling products containing traces of acrylamide, because there is no known hazard from the levels found in our food.
California advocates like Senators Boxer and Feinstein argue that having national food labels pre-empt state labeling laws would be "gutting" Prop 65. And here they are actually correct, but this would be a good thing. It is counterproductive -- and cumbersome -- to allow individual states to require cancer warning labels based on purely hypothetical risks. Wheatena is an excellent test case in that the cereal has qualified for three different federal health claims: "Heart Healthy," "Bone Healthy," and "May Reduce the Risk of Certain Types of Cancer." Having boxes of Wheatena sold in California featuring labels proclaiming a risk of cancer -- right next to FDA-endorsed health claims -- is ludicrous, serving only the needs of scriptwriters for late-night comedians.
Given that acrylamide is nearly omnipresent in cooked high-starch foods, stay tuned for similar lawsuits demanding cancer warning labels on cakes, bread, cookies, and more. There is already a pending lawsuit against California fast food restaurants based on the claim that French fries need Prop 65 cancer labels as well. It reminds me of the old adage: when everything is dangerous, nothing is. It all becomes a blur, leaving consumers unable to distinguish between the real and the bogus risks of cancer.
Elizabeth M. Whelan, Sc.D., MPH, is president of the American Council on Science and Health (ACSH.org, HealthFactsAndFears.com).
