Regulatory Round-Up: Are Warning Labels for Chemicals in Foods Based on the “Best Available Science?”Patrick Kennedy /
The potential risk of unsafe chemicals in foods has generated significant attention on social media in recent years due to growing consumer demands for “clean food” and food safety. Within the United States, the infamous Proposition 65 law in California is responsible for the majority of warning labeling requirements for chemical contaminants, but there has been an upward trend in state legislative proposals related to the risk of certain chemicals in consumer products. In response to this trend, several major food industry associations have joined forces to support a new federal bill titled the Accurate Labels Act, which seeks to impose more stringent scientific criteria for warning labels related to chemicals. If the bill becomes law, it could supersede or undermine the various state labeling requirements for chemical contaminants if the state rules are not grounded in the “best available science.”
State Proposals Are Targeting Chemicals
The current deregulatory approach of the federal government has led to a greater emphasis on state regulations prompted by product safety and public health issues. In fact, more than 20 states and numerous municipal governments have introduced dozens of proposals within the previous two years that address the presence of potentially unsafe chemicals in consumer products. Read the list below for a few examples of state legislative proposals since 2017 that have targeted chemical contaminants in food and beverages:
The state Assembly Bill 958 would require a manufacturer of food packaging or cookware to include a statement regarding the presence of perfluoroalkyl and polyfluoroalkyl substances (PFAS).
Effective January 2019, Hawaii will become the first U.S. state to impose a statewide ban on all agricultural uses of the controversial pesticide chlorpyrifos.
On January 29, 2018, the Assembly Bill 2179 was introduced to prohibit the sale of candy with the concentration levels of lead, mercury, or cadmium naturally exceeding a sum of 100 parts per million by weight (0.01%).
The Bill A1407 was introduced to prohibit the sale of any foods and beverages in containers containing Bisphenol A (BPA).
The House Bill 688 would establish a ban on the use of BPA at a level above 0.1 parts per billion (ppb) in food and beverage containers.
Washington state enacted a law in March to ban the use of PFAS in food packaging, provided that the Washington Department of Ecology can find safer alternatives to PFAS chemicals by January 1, 2020. The state-wide ban will take effect on January 1, 2022.
Evolving Proposition 65 Requirements
Proposition 65 is a California law requiring “clear and reasonable” warning labels on products containing chemicals determined by the state to cause cancer, birth defects or other reproductive harm. California’s Office of Environmental Health Hazard Assessment (OEHHA) manages the list of more than 850 naturally occurring and synthetic chemicals, found in a broad range of products, including food and beverage products.
Later this month, the Proposition 65 requirements will change for all products manufactured after August 30, 2018. For all products containing Proposition 65 chemicals, California will require a new safe harbor warning statement that specifically identifies at least one chemical per warning. If the warning applies to both cancer and reproductive harm, then the statement must identify a chemical for each exposure risk. The OEHHA has posted a summary of the upcoming Proposition 65 requirements.
In recent months, several Proposition 65 decisions have also been challenged in court, including the requirements related to acrylamide and glyphosate.
Acrylamide is a natural byproduct of the coffee roasting process and also forms during the high-temperature cooking of certain carbohydrate-rich foods, including potato-based foods and cereal-based foods, such as cookies and crackers, etc. In March 2018, a California Superior Court judge ruled that California businesses must post a warning about the potential cancer risk of acrylamide in roasted coffee. However, the OEHHA recently proposed a rare reversal of its decision by proposing a regulation that would exclude coffee from the Proposition 65 warning requirements. Notably, the proposed regulation would exempt some additional chemicals present in coffee, including: acetaldehyde, formaldehyde, furan, furfuryl alcohol, 4-methylimidazole and others.
In July, a California appeals court concluded that breakfast cereals and other food products are also exempt from the Proposition 65 warning statement. despite the presence of acrylamide in these items. The state appeals court ruled that warning statements on breakfast cereals, peanut butter, whole wheat bread and similar products would discourage consumers from eating “otherwise healthy foods.”
Glyphosate is an herbicide routinely applied to agricultural commodities, including corn, soybeans, sugar beets, wheat, oats, barley, fruits, vegetables and nuts. The chemical was added to the Proposition 65 list in 2017, but a U.S. District Court decision this summer blocked California from requiring a warning statement for products containing glyphosate residues. The judge ruled that a “heavy weight of evidence” indicated that glyphosate is not a human carcinogen despite the contrary opinion of scientific experts from the World Health Organization’s International Agency for Cancer Research.
Uncertain Future for State Warning Labels?
The Accurate Labels Act (S. 3019 and H.R. 6022), a federal bill introduced to the U.S. Congress this summer, has been strongly endorsed by the leading U.S. food industry associations, including the Grocery Manufacturers Association. The bill is an attempt to ensure that consistent scientific criteria are utilized for labeling requirements pertaining to the chemical composition of consumer products. The bill states that labeling requirements should be based on the “best available science” in accordance with “objective scientific practices” and reliable, peer-reviewed data.
As proposed, the bill would not require the declaration of non-functional or naturally occurring constituents, and manufacturers would not be required to list trace amounts of chemical substances (<0.1%) on product labels. The bill has proposed the allowance for state-mandated product information, such as Proposition 65 warning statements, to be provided through a wide variety of formats, including a pictogram, pamphlet or “smart label” link to a website.
The legislation has raised questions about the accuracy of scientific data utilized by state governments to impose labeling requirements. Essentially, how much scientific evidence is needed to mandate warning labels for chemical risks, and who will determine the acceptability of the scientific data?
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Meet the Author
Information Services Manager, Mérieux NutriSciences
Patrick Kennedy is the Information Services Manager for Mérieux NutriSciences. He has over 15 years of food industry experience and has written extensively covering a wide range of food safety and regulatory subjects. He holds a MS degree in information science from the University of Illinois, and is a member of several industry organizations including AOAC, IFT and IAFP.