Whole Foods, Holier Than Thou

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In his 1869 Inaugural Addresses, Ulysses S. Grant said, "I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution."

To that end, the American Council on Science and Health is taking action to illustrate the absurdity of California's Proposition 65. Prop. 65 requires that manufacturers put a warning label on products even ones that pose no risk to human health simply because they contain tiny amounts of a chemical that can cause cancer in lab animals if given to them in massive doses the likes of which no human would consume.

Under this absurd regulation, virtually any food can be labeled a carcinogen.

We filed the statutory sixty-day notice with California's Attorney General and the defendant, Whole Foods Markets, for failing to warn the public about the presence of acrylamide, a chemical "known by the state of California" (as the dire Prop. 65 warning labels say) to cause cancer and reproductive toxic effects. Acrylamide is present even in whole wheat, organic bread made of unbleached flour, such as that baked and sold by the defendant.

Proposition 65 provides that anyone may bring what is known as a "bounty-hunter" suit in the "public interest." But the public interest being promoted by our suit is not the protection of consumers from a cancer-causing agent because Whole Foods organic whole wheat bread is not a health threat. Rather, the pubic interest we hope to promote is a legal code based on sound science, instead of one driven by unfounded fears. Suing organic bread underscores the absurdity of Prop. 65's broad, label-everything-carcinogenic approach to chemicals. As noted by University of California at Berkeley toxicologists Dr. Bruce Ames and Dr. Lois Swirsky Gold, "No human diet can be free of naturally occurring chemicals that are rodent carcinogens."

Let me be clear: We believe this lawsuit is sound it's the law itself that is without merit.

We selected the Whole Foods Market as the defendant because that company prides itself on providing the ultimate in healthful foods that contain no synthetic chemicals. Yet their organic breads made from organic, non-bromated, unbleached flour will also contain the naturally-occurring rodent carcinogen, acrylamide. What most people don't realize is that bread of any kind contains naturally occurring rodent carcinogens, such as furfural. And most foods organic or not also contain compounds that are carcinogenic when tested in rodents. But because the tests that determine whether a chemical is a rodent carcinogen typically rely on very high doses administered over a lifetime, they should not be directly extrapolated to humans.

Note that Whole Foods Market, while guilty of promoting fears about chemicals, was not intended to be the direct target of our suit. The state of California is primarily responsible for foolish laws such as Prop. 65, so we sought to hold the state itself accountable by suing it, since it surely sells whole wheat organic breads at state-owned concessions. But, alas, the law grants a unilateral exemption to the state. Apparently, its citizens only benefit from warnings on non-state-sold products.

Why, you might ask, are we suing over bread and not french fries, which have been shown to have higher levels of acrylamide than bread? Because those who claim that there is no safe level of exposure to carcinogens the kind of extreme environmental activists who inspired Prop. 65 would want it that way. After all, the activists often say things like, "It doesn't matter how much of the substance there is why would you want carcinogens in your food at all?" It is an appealing argument. But it isn't backed up by science. According to toxicologists, the amount of exposure does matter. (This does not mean that activists should go attack french fries, though. They levels of acrylamide in french fries are still so low as to pose no hazard though activists will probably find it easier to make people afraid of french fries than of bread, since we tend to think of french fries as fattening and naughty to begin with.)

With any luck, we've helped make it crystal clear that even the most wholesome food from the most wholesome retailer contains carcinogens making the relentless anti-carcinogen crusade rididculous. We hope that our lawsuit leaves citizens better informed about their food and better informed about California's excessive regulations.

Jeff Stier, an attorney, is the Associate Director of the American Council on Science and Health.

See ACSH.org for press releases and articles about the organic bread lawsuit.

Responses:

August 7, 2002

I saw an article on CNSnews.com about you suing the Whole Foods Market under Prop 65. Great Job! It's about time sometime took on that asinine piece of legislation.

I have never understood why federal preemption did not apply to that law, as it seems like an unlawful restraint of trade to me. In fact, it seems to me that when it started back in 1986 the USDA did just that assert their preemption. I'm all for Federalism, but California wants to act like it's a separate country.

I know that you don't actually think that anyone is at risk from eating organic bread, but sometimes, as Rush Limbaugh has often said, you just have to "illustrate absurdity by being absurd."

Thank you for your commitment to truth and fact-based science.

Ed Albaugh
Program Committee Chairman
Society of Flavor Chemists


August 9, 2002

As you appear from ACSH's website to be ACSH's attorney, I thought I'd address this message to you.

I read Dr. Henry Miller's column [about the Prop. 65 lawsuit see http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2002/08/13/ED145605.DTL] today with some interest. I am not a lawyer, but his column about your organization's lawsuit against Whole Foods seemed to be describing a lawsuit that your board knows is frivolous but is nevertheless pursuing. Isn't this an abuse of the legal process, and couldn't you be sanctioned appropriately by a judge?

I have always been under the impression that in a lawsuit, the plaintiff's attorney must attest that he believes in the merit of the client's claim and that the suit is not being filed to harass someone or otherwise abuse the process.

If a member of your board of directors writes in the newspaper that the lawsuit is designed to get Whole Foods because they are a pain in the neck with their whole wheat bread, isn't that a textbook example of abuse of process? By the way, has Whole Foods committed any transgressions besides using unrefined flour? Dr. Miller doesn't say anything except that they are sanctimonious and all-around do-gooders.

Best Regards,

Stefan Hanson
Huntington Beach, CA


August 9, 2002

Stier replies:

Mr. Hanson,

Your question gives me the opportunity to clarify the law and the facts. We do attest to the fact that we believe that the defendant is in violation of Prop. 65.

The law says you have to put a warning label on a product that has a "Prop. 65 chemical" in it. Acrylamide is on the Prop. 65 list, the bread has acrylamide in it, and it is sold by the defendant in California. Done.

Dr. Miller explained why we used WFM as a defendant in this case: because they aren't the do-gooders they claim to be. In fact, their entire business model is based on the fraudulent assertion that "organic" foods are less dangerous than conventionally grown agriculture. This is not true. And it is not a victimless fraud. The family farmers who use traditional methods are hurt because they lose business based on that fraud. The mom and pop corner groceries that sell traditional produce are hurt because people go to WFM instead. And most significantly, consumers, millions of blue collar workers who can't afford $3.49 for tomatoes, are hurt because they are guilt-tripped into thinking that if they don't shop at WFM they are putting their children's lives in danger. Again, this is simply not true, and there are real, though not immediately visible, victims.

We do find WFM to be in violation of the law. Again, it is the law, not the lawsuit, that is without merit.

Our lawsuit is a bit like taking a tax deduction for something you don't think we should get tax deductions for. You are against it, but until the rules are changed, you play by those rules. Nobody would suggest that you not take the tax deduction simply because you think that it's bad policy.

By the way, we would have preferred to bring suit against the most guilty party here, and that is the State of California, which created the law but they are exempt from Prop. 65. Go figure.

Sincerely,

Jeff Stier, Esq.
Associate Director
ACSH


RESPONSES:

August 12, 2002

I was in California in 1988 and got scared to death by all the warning signs plastered everywhere saying that the state knew everything caused cancer.

Since the people of California have been receiving these warnings for so long, has any study found that the occurrence of cancer is lower there than in the (unenlightened) states the rest of us live in?

Bruce Odom
Texas


January 22, 2003

Has ACSH filed the lawsuits in California regarding Prop 65? If so, who is being sued or, if not, when will the lawsuits be filed?

My interest was kindled after reading that the dentists in California will now be required to "warn" their patients that mercury amalgam fillings contain mercury, a known poison.

How about suing everybody, since just about everything contains neutrons which, as we know from the neutron bomb, kill people?

Thanks!

Tim Gorski, M.D.
ACSH Advisor

Stier replies:

Dear Dr. Gorski,

We were hesitant to post your comment online, as it may give the activists an idea for their next lawsuit!

There is no pending legal matter, as the California attorney general opposed our initial move to sue Whole Foods Market.

We do not have the funds to hire legal counsel with expertise in Prop 65 to move forward. However, we are pleased that many people were educated about the ill-advised nature of the law as a result of our efforts.

Jeff Stier, Esq.
ACSH Associate Director


July 6, 2003

The rationality of Jeff Stier and many scientists should be examined. How rational is it to claim to know that there can be no consequences from altering what it took nature millions of years to create: the genetic code that, for instance, corn has or should I say had? Rabbits were to cause no harm imported to Australia, claimed the scientists of the day.

tuhe


July 6, 2003

For insulting Whole Foods, I will ever remember your organization as an enemy to human health and reasoned science. That you would wrap your petty grudges and alliances in big words like "health" and "science" is despicable.

Humanity is too powerful to be kept in darkness and folly by the likes of you. As a meat-eating, non-New-Age, ecohumanist and health advocate, I condemn your attacks against Whole Foods as the worst sort of tribal hostility cloaked in a modern and enlightened guise.

R.C.M.M.