FDA Nutrition Goals Outweigh California Prop 65 Labeling Requirements for Cereal, State Court Says
A California state appeals court recently ruled against Proposition 65 labeling requirements for cancer-causing chemicals in cereals, finding Food and Drug Administration nutrition policy goals outweigh the state’s requirements that cereal manufacturers add warnings to their packaging. Acrylamide, a chemical caused by baking, roasting and frying carbohydrate-rich foods like cereals, is listed by California as posing cancer risks, but Post Foods, General Mills and Kellogg's do not have to add Proposition 65 labeling because the requirements are pre-empted by federal nutrition labeling law, the court said.
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FDA had voiced concerns to California regulators that Proposition 65 labeling on cereal boxes would confuse consumers and detract from the agency’s efforts to promote nutrition. The labels would confuse and mislead consumers, and be likely to cause consumers to avoid whole grain foods like breakfast cereals, leading to health detriments, FDA said, according to the appeals court. As such, requiring Proposition 65 labeling for acrylamide on cereals is pre-empted “because such warnings would frustrate federal objectives and conflict with federal law,” the court said.
The decision is “remarkable and perhaps precedent-setting,” law firm Kelley Drye said in a blog post. “In overturning a lower court ruling finding no preemption, the three-judge panel of the state appeals court gave remarkable deference to Food and Drug Administration policy and guidance,” it said.
“The decision is important not only for the extent of deference afforded to federal policy in weighing the preemption analysis, but in opening up (or at least significantly widening) an avenue for further challenge to [Proposition] 65 warnings when such statements differ from federal requirements, particularly in the case of foods and nutrition or other scenarios in which a federal agency has specifically weighed the risks and benefits of warning labels,” the blog post said. “The decision also may affect warnings for other chemicals found in food products, most notably furfuryl alcohol, which, like acrylamide, also is produced during thermal processing and may be found in certain cereals and other whole grain products.”