Since May 2002 California plaintiffs have reportedly brought enforcement actions against a number of food manufacturers and fast food restaurants claiming that because carcinogens or reproductive toxicants are contained in their products, they are required to provide public warnings under the Safe Drinking Water and Toxic Enforcement Act. This law, also known as Proposition 65 (Prop.65), was approved by state voters in November 1986. It requires the governor to publish a list of chemicals known to the state to cause cancer, birth defects or other reproductive harms. Companies selling products in California must provide warnings if such substances are contained in their products. Private citizens are empowered under the Act to sue alleged violators to enjoin future violations and obtain civil penalties for past violations.

Plaintiffs in American Environmental Safety Institute v. Mars, Inc., No. BC273433 (Cal. Super. Ct., Los Angeles Cty., filed May 8, 2002), allege that chocolate contains the toxicants lead and cadmium and thus require Prop. 65 warnings. In July the American Council on Science and Health served a 60-day notice, a precursor to an enforcement action, on Whole Foods Markets, claiming the company’s organic whole wheat bread exposes consumers to acrylamide. This action, taken by a conservative organization, was apparently intended to illustrate the absurdity of the law and is unlikely to proceed further.

Acrylamide is also at issue in Council for Education and Research on Toxics v. McDonald’s Corp., No. BC280980 (Cal. Super. Ct., Los Angeles Cty., filed September 5, 2002). This complaint alleges violations of Prop. 65 and the Unfair Business Practices Act.

According to the plaintiff, “Defendants’ french fries contain approximately 100 times more acrylamide than the maximum level permitted by he World Health Organization for drinking water.” The California attorney general has written to the lawyers in the chocolate and french fry cases indicating that the enforcement actions may not be appropriate or in the public interest. See calprop65.com, September 15, 2002.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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