challenges with proposition 65 shannon cole, pmp director of science operations, chemistry &...
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![Page 1: Challenges with Proposition 65 Shannon Cole, PMP Director of Science Operations, Chemistry & Biochemistry Grocery Manufacturers Association September 30,](https://reader035.vdocument.in/reader035/viewer/2022062714/56649d205503460f949f465f/html5/thumbnails/1.jpg)
Challenges with
Proposition 65
Shannon Cole, PMP
Director of Science Operations, Chemistry & BiochemistryGrocery Manufacturers Association
September 30, 2010 – AOAC Annual Meeting
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Prop 65 Outlook
How has Proposition 65 activity transformed?
• Prop 65 was not about food when it was first passed
• Prop 65 does not distinguish between foods and other sources of chemicals
• Vast majority of foods contain detectable traces of one or several Prop 65 chemicals
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Foods may be the most
common product category based on vulnerability
to Prop 65
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Why are these chemicals found in foods?
1. Because they are naturally occurring in food
• Examples:• Heavy metals in most products grown in soil• Lead in juices and canned foods• Toxin producing molds in grains
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Why are these chemicals found in foods?
2. Because they are unavoidable by-products of cooking
• Examples:• Acrylamide in baked or fried potatoes, cereals
and baked goods• PAHs in grilled meats, chicken and fish• Naturally occurring Maillard “browning” reactions
such as 4-MEI in certain caramel colorings• Natural enzymatic reactions in fruits such as
methanol in juices
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That “detectable” amount is enough for a plaintiff to file a Prop 65 60-day
Notice
These notices generate adverse publicity and typically initiate a
lawsuit!
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How does a defendant proceed?
Defendant must PROVE that the food in questions poses an allowable risk OR that it meets the tortured regulatory definition
of “naturally occurring”
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What’s next for the defendant?
• Both of these are factual showings which, to be made, require:• Discovery• Expert Witnesses• Scientific and technical analysis• Depositions• And in most cases, a TRIAL!
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What does that mean?
Lots of $ and time!!!!
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Industry Burden….
• These “showings” can take years to make and represents a distraction to the business of the defendant
• This literally can cost millions of dollars!!!
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Why are foods being targeted?
• For the first 20 years of Prop 65, food was largely left alone
• Both public prosecutors and private plaintiffs focused their attention on the kinds of chemicals at which toxic exposure laws are usually directed• Hardware stores, refineries
and electronics
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Then prosecutors discovered that food was a very attractive
target of these cases!
Why….
It was very easy to show that a Prop 65 chemical was present in
food
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AND food companies were not putting
cancer or birth defect warnings on their food products
And grocers often put a lot of pressure on the food
manufacturer to settle cases!
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Time for Discussion