California Court Allows Grilled Chicken Prop. 65 Labeling Suit to Proceed
A California appellate court has reversed a summary judgment order that terminated litigation involving claims that chain restaurants violated Proposition 65 (Prop. 65) by selling grilled chicken products to consumers without appropriate warnings about carcinogens created by the cooking process. Physicians Comm. for Responsible Med. v. McDonald’s Corp., No. B218089 (Cal. Ct. App., decided August 12, 2010). The carcinogens at issue are polycyclic aromatic hydrocarbons and PhIP (2-amino-1-methyl-6-phenylimidazol[4,5-b]pyridine).
The trial court had dismissed the claims in late 2008 finding that the proposed warnings, which mentioned “well cooked,” “thoroughly cooked” and “grilled” chicken, were barred by conflict preemption because they would frustrate the U.S. Department of Agriculture’s (USDA’s) “longstanding policy of promoting the safe cooking of chicken” under the federal Poultry Products Inspection Act (PPIA). The court agreed with the defendants that the warnings would have frightened consumers from properly cooking chicken.
The trial court dismissed the claims again in June 2009 after the plaintiff identified two additional proposed warnings—one stating that “certain chicken products” contain a carcinogen and the other including Prop. 65’s “safe harbor” warning. The latter provides simply: “WARNING: Chemicals known to the State of California to cause cancer, or birth defects or other reproductive harm may be present in foods or beverages sold here.” According to the trial court, while some defendants were posting the Safe Harbor warnings in their restaurants, they had not done so as a result of the litigation, and these too were preempted by federal law.
The appeals court determined that the safe harbor warning does not create a conflict between Prop. 65 and the PPIA because the warning “does not even mention chicken. The Safe Harbor Warning therefore does not communicate any message about chicken of any description, whether well cooked, thoroughly cooked, or grilled.” Even if the plaintiff were to engage in adverse publicity, linking the safe harbor warning to PhIP in chicken, the court said, “[u]ndesirable publicity by a nonprofit organization does not create a conflict between state and federal law or policy.”
The court also noted, “there was no showing in the trial court that Proposition 65 warnings are required.” Apparently, no evidence had been proffered showing that PhIP levels are high enough to justify the warnings, and the parties had failed to address an issue raised by California’s attorney general in an amicus brief. A Prop. 65 “cooking provision” allows higher than no significant risk levels where the carcinogenic chemicals in food are produced by cooking required to avoid microbiological contamination. The attorney general argued that the cooking provision prevents any facial conflict between Prop. 65 and any federal policy under the PPIA. Because the “factual and statistical record regarding the actual level of PhIP in the Restaurants’ grilled chicken is undeveloped,” the court said, “the Cooking Provision does not eliminate the possibility that a warning would be required.” The court left these matters for further development by the trial court.
