Prop 65 requires warnings on products when California disagrees with the Food and Drug Administration (“FDA”) and the United States Department of Agriculture (“USDA”) and the United States Environmental Protection Agency (“EPA”) and the other 49 states and foreign countries – – California alone decides which foods are unsafe. We’ve all seen the warnings at Starbucks and elsewhere: “Food sold here contains chemicals known to the state of California to cause cancer and birth defects.” Two recent government actions show just how far California will go to protect its regulatory sacred cow.
A California appellate court recently ruled in Post Holdings v. Superior Court (“Post Holdings”) that whole grain breakfast cereal boxes do not need to display Prop 65 warnings because doing so would defeat the FDA’s goal of encouraging people to eat whole grains because they are healthy. The appellate court ruled that the FDA is a higher authority than Prop 65, therefore, Prop 65 warnings cannot be required on whole grain breakfast cereals. California Attorney General Xavier Becerra appealed the case to the California State Supreme Court. Claiming that Post Holdings should be struck down because it would remove Prop 65 warnings from other FDA approved healthy foods. Last week the California State Supreme Court ruled that Xavier Becerra knows more about nutrition than the FDA and removed Post Holdings from the roster of California legal precedents. This means that breakfast cereal boxes don’t need Prop 65 warnings, BUT no other FDA approved healthy food can rely on Post Holdings for legal protection. The State Supreme Court acted politically by removing Post Holdings from the roster of California legal precedents – – bowing to the wishes of State politicians and special interest groups rather than obeying the FDA’s policy of enhancing public nutrition. The Supreme Court should have ruled in favor of public nutrition and upheld the FDA’s policy cited in Post Holdings as respect for the other FDA-approved healthy foods. But, it chose not to, knowing that no further appeals are possible.
Similarly, California’s action regarding Environmental Law Foundation v. Beechnut (“Beechnut”) which held that Prop 65 should follow settled science and be governed by the levels of chemicals actually in a person’s blood over time, rather than adhering to rigid inflexible chemical levels established by politicians. The Office of Environmental Health Hazard Assessment (“OEHHA” the California agency that oversees Prop 65) is enacting an administrative rule to outlaw the holding in Beechnut. It’s just that simple: OEHHA is outlawing reliance on science to protect Prop 65.
The Food Lawyers® Analysis: Prop 65 lies at the heart of California governmental religion – – anything that is done to limit that religion will be attacked from all levels of government. The above actions taken by the California State Supreme Court and OEHHA make that abundantly clear. Prop 65 provides no discernable public benefit. Federal Centers for Disease Control statistics reveal that birth defects and cancer (Prop 65’s targets) are no lower in California than in other states. Fail to toe the Prop 65 line and you are exposed to fines as high as $2,500 per day. It’s California, it’s crazy, and it’s not about to get any better.