USDA Challenges Prop 65 Warning Labels on Meat and Poultry

Date: Jun 01, 2005

Once again, the question of whether a federal statute preempts California's Proposition 65 warning requirements has come into the spotlight. The question originally arose with pesticides and consumer products, then workplace exposures and, more recently, drug products.

Now, the issue arises in relation to meat and poultry products that are regulated by the United States Department of Agriculture (USDA) under the Federal Meat Inspection Act and the Poultry Products Inspection Act. Both of these statues have provisions which explicitly provide that no state shall impose 'marking, labeling, packaging or ingredient requirements, which are in addition to, or different than, those" established by USDA for products prepared at federally inspected facilities.

Proposition 65 (also known as the California Safe Drinking Water and Toxic Enforcement Act of 1986) requires, among other things, that a "clear and reasonable warning" be provided for use of a product that results in exposure to any of 750 chemicals listed by the State of California as carcinogens or reproductive toxins, unless it can be demonstrated that the exposure in question does not exceed certain levels. Although the law provides an exemption for exposures "for which federal law governs warning in a manner that preempts state authority," state officials have yet to see a federal law that operates in such a manner with respect to consumer products.

In this instance, several letters (known as 60-day notice letters) alleged violation of Proposition 65 by named meat companies. They were filed with the California Attorney General and sent to the meat and poultry facilities by Whitney Leeman, Ph.D., and his lawyer, Cliff Chanler, a well-known Proposition 65 bounty hunter and founder of the infamous As You Sow organization. The notice letters allege that consumption of these companies' meat products, in this case beef and beef products, expose consumers to the carcinogens polychlorinated biphenyls (PCBs) and polychlorinated dibenzo-p-dioxins, without providing the required warning.

USDA sent two letters, one to California Governor Arnold Schwartzenegger and one to the California Attorney General, explaining that its labeling requirements (including point-of-sale materials) preempt any warning imposed by Proposition 65. USDA makes the important point that point-of-sale materials presenting a Proposition 65 warning "would only confuse the public as to the wholesomeness of the meat and poultry products."

The California State Attorney General Office disagrees. Deputy Attorney General Ed Weil believes the federal government has no preemption authority in regards to California's point-of-sale warning requirements. He cites a 1992 decision of the Ninth Circuit Court of Appeals upholding Proposition 65 point-of-sale warning signs for pesticides against a similar preemption provision under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).

If the State of California has a problem with USDA regulation of meat and poultry products, it should bring the matter to the attention of federal officials who can act on it properly. Taking the other tact - warning consumers of perceived risks without taking into account benefits, and without offering meaningful steps to mitigate those risks - serves no useful purpose and can actually lead to harm.

Used with permission. Copyright FOOD & DRUG PACKAGING, June, 2005.

For further information about this article, please contact George G. Misko at 202-434-4170 or by email at misko@khlaw.com.