Court Dismisses Challenge to OEHHA’s Listing of 4-MEI as Carcinogen Under Prop. 65
A California court has determined that California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) complied with the law in determining that 4-methylimidazole (4-MEI), a chemical present in many common foods and beverages, is a carcinogen known to the state to cause cancer. Cal. League of Food Processors v. OEHHA, No. 34-2011-80000784 (Cal. Super. Ct., decided November 21, 2011). As noted by the court, “The chemical is used in the manufacture of various products like pharmaceuticals, and it is a by-product of fermentation found in food products like soy sauce, roasted coffee, and caramel coloring added to colas and beer.”
A number of trade associations representing an array of food and beverage interests challenged the listing, which will require product warnings under the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). They claimed that OEHHA’s reliance on a National Technology Program technical report on 4-MEI did not meet Prop. 65’s requirements for listing via the authoritative body mechanism. According to the petitioners, “the Technical Report did not formally identify 4-MEI as causing cancer pursuant to the requirements of Section 25306(d) and did not provide sufficient evidence of carcinogenicity from studies in experimental animals pursuant to the requirements of Section 25306(e)(2).” The court disagreed and also rejected the petitioners’ free speech challenge to the listing.
Assuming, despite contrary “persuasive” argument, that the free speech
claim was properly pled and was ripe for review, the court found that the
claim nevertheless failed because “commercial speakers have no right not to
divulge accurate information about their products purchased by consumers”
and because the warning about 4-MEI “is grounded in fact, not controverted
opinion.” According to a news source, OEHHA plans to move forward
with plans to establish a “no significant risk level” for the chemical to help
companies decide whether a Prop. 65 warning will be required for the 4-MEI
exposures in their products. It was apparently unknown whether the petitioners
would file an appeal. See Inside Cal/EPA, November 25, 2011.
