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Prop. 65 Warning No Longer Needed For Coffee; Cereal Under Scrutiny

Ron Fong
Ron Fong

Last updated on August 20th, 2018 at 10:15 am

by Ron Fong/president and CEO, California Grocers Association

In many respects, California is like an island unto itself when it comes to laws and regulations.

For better or worse, our state is home to a number of laws and regulations that exist nowhere else in the nation. Among the most notorious and controversial of them is Proposition 65, a ballot initiative approved by voters in 1986 that created a strict regime for product labels and signs to warn consumers about the presence of chemicals that cause cancer or reproductive harm.

To a grocer or supplier that has never done business in California, the thought of having to post these warnings seemingly everywhere is a daunting prospect at best. Those who regularly do business here can attest that the impact of such warnings has become extremely diluted due to the ubiquitous nature of the signs themselves.

The biggest threat under Prop. 65 is not so much the potential spooking of customers because of these warnings, but the potential of “gotcha” lawsuits that have plagued California businesses for inadvertently not having a sign or label posted.

Rarely is there good news for business when it comes to Prop. 65. Imagine the shock experienced by grocers and other retailers upon hearing the latest news on this infamous law.

In June, the Office of Environmental Health Hazard Assessment (OEHHA)—the state agency responsible for determining what chemicals fall under the oversight of Prop. 65—proposed a regulation clarifying that cancer warnings are not required for coffee under Prop. 65.

This regulation, should it be approved, could result in grocers and coffee companies no longer having to concern themselves with providing Prop. 65 warnings on coffee products or shelves carrying coffee products. This, in turn, would remove any threat of Prop. 65 suits being filed over these products.

The latest product that appears to be free from Prop. 65 enforcement, at least for the time being, is cereal.

A recent appellate decision from the Second District Court of Appeal in Los Angeles has determined that breakfast cereals do not require a Prop. 65 warning for acrylamide. The decision was based on the fact that in 2003 and 2006, the U.S. Department of Agriculture (USDA) issued letters to California officials advising them that breakfast cereals contain whole grains, which the USDA wants Americans to consume.

The court found that the letters contained persuasive reasoning why warnings would mislead consumers and lead to health detriments. Essentially, the court found that the federal interest in Californians consuming whole grains preempted California’s interest in warning consumers that cereals contain acrylamide. The plaintiff in the case intends to ask for a rehearing and will likely appeal the case to the California Supreme Court.

CGA members should know that their private label whole grain breakfast cereals do not need a Prop. 65 cancer warning for acrylamide, though this could change in the future if the California Supreme Court holds otherwise. CGA will provide updates as they become available.

Fong became president and CEO of CGA in March 2008. A native Californian and a lawyer, he joined CGA after 12 years with the California Credit Union League (CCUL). At CGA, Fong serves as the association’s chief legislative and political advocate and ­oversees government relations, member services, convention and communication programs. He also is ­president of the California Grocers Association Educational Foundation (CGAEF). His grandfather started Carmichael Supermarket, the first grocery market in Carmichael, California, in 1941, and Fong worked in the ­grocery business as he grew up.

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