Cancer labels on cereal ruled unnecessary
Cereals like Cheerios and Grape-Nuts Flakes contain a chemical that researchers have identified as a possible cause of cancer. The cereals also contain whole grains, which the government wants Americans to consume.
A state appeals court weighed those conflicting factors and found the balance in favor of the federal government’s whole-grain assessment. Cereals produced by Post, General Mills and Kellogg do not have to carry cancer-warning labels under California’s Proposition 65, the court said, because the labels could discourage consumers from buying healthy foods.
Letters from the U.S. Food and Drug Administration to California health officials, written in
2003 and 2006 and never retracted, “contained persuasive reasoning why (warnings on wholegrain cereals) would mislead consumers and lead to health detriments,” the Second District Court of Appeal in Los Angeles said Monday in a 3-0 ruling.
The cereals contain the chemical acrylamide, but so do other foods, the court noted. Requiring warnings on all foods containing acrylamide at levels that pose any risk of cancer “would cause many otherwise healthy foods to appear to consumers to be unhealthful,” the court said, including peanut butter, rye and whole wheat bread, sunflower seeds, and prune juice.
The justices also noted that when the state sought to require Prop. 65 warnings on canned tuna because it may contain harmful levels of mercury, an appeals court said California law was preempted because federal health officials were already advising consumers of tuna’s benefits and possible risks.
Likewise, the state Supreme Court followed federal officials’ directions in 2004 by refusing to allow Prop. 65 warnings on antismoking patches containing nicotine, which can cause fetal damage.
Prop. 65, passed by the state’s voters in 1986, requires businesses to notify the public when their products, or any substances they release into the environment, contain ingredients that have been shown to cause cancer or birth defects.
Acrylamide, used in manufacturing, has been listed as a workplace carcinogen by federal agencies and was added to California’s Prop. 65 list in 1990. Its presence in foods was discovered in 2002, when researchers detected it as a byproduct of baking, roasting or frying carbohydrate-rich foods such as potato chips and French fries — both of which now carry Prop. 65 warning labels — and cereals.
Monday’s ruling ordered dismissal of a suit by Richard Sowinski, a retired Walnut Creek physician who had sought to require Prop. 65 warnings on 59 cereals sold by the three companies. His lawyer, Anthony Graham, said Tuesday he would ask for a rehearing and, if denied, seek review in the state Supreme Court.
The letters from 2003 and 2006 are outdated, Graham said, and neither federal law nor government policy favors consumption of foods with unsafe levels of carcinogens.
“You can resolve the (court) action by reformulating the product,” he said.
The court, however, rejected arguments that Prop. 65 warnings would encourage the companies to make safer cereals. The Food and Drug Administration has advised that researchers are looking for ways to reduce acrylamide in cereals and other foods, and that some methods, like increasing sodium content, carry their own risks, the court said.
There was no comment from lawyers for the cereal manufacturers.
Acrylamide has also been the focus of a dispute over warning labels on coffee. In March, a judge in Los Angeles ordered major coffee outlets in California to post Prop. 65 warnings. But the state’s Office of Environmental Health Assessment announced proposed regulations last month that would eliminate the need for those warnings, saying scientific evidence has not shown that coffee increases the risk of cancer.
The environmental health office did not take part in the cereal case.