California Shouldn't Be Making Food Policy for All Americans

When it comes to the foods we eat and the beverages we drink, it’s impossible to know what’s bad for us anymore. It seems that not a single day passes without a new warning about something that may be in our food that might someday cause us harm.

We can thank special interest groups like the Center for Science in the Public Interest for this culture of nutritional confusion. After all, CSPI won’t be truly happy until we are all eating a government-mandated diet of blanched spinach, brown rice and soy milk. They issue hysterical press releases with scare headlines which too many news outlets dutifully repeat. Often, the press releases call on the FDA to hurry up and do something to address their latest hyped-up crisis.

Fortunately, the FDA has its own team of expert scientists. They look carefully at real scientific data, do studies, and consider what’s really in the interest of American consumers. As a result, the FDA almost never gives the food police groups what they want.

So CSPI and the rest of the food police have turned to the states. And not surprisingly, California is leading the way.

Using a 1986 clean water initiative called Proposition 65, trial lawyers and California Attorney General Bill Lockyer are trying to beat up “big food.”

Under Prop 65, anyone can bring a lawsuit against a company that fails to warn consumers that their product contains a chemical that might be a carcinogen or reproductive toxin at any dose in any species of laboratory animal. Whether or not that chemical actually harms humans isn’t relevant. Neither is evidence that shows that the substance might be safe for people. There are nearly 1,000 chemicals now on California’s list.

Several years ago, Swedish scientists were studying the effects of a chemical called acrylamide, then thought to be a synthetic chemical used in industrial applications. But the Swedes discovered that that when you cook certain foods like asparagus, cereal grains, and potatoes at high temperatures, acrylamide is a natural by-product. That means we’ve been eating it for generations.

When the study came out, acrylamide was already on California’s list of “dangerous” chemicals. So within days, plaintiff’s lawyers were threatening lawsuits against chain restaurants and snack food makers. Every health agency in the world and scientists from California’s own universities have said that the study shows no need for warnings, and the FDA warned California that there could be adverse effects on public health from requiring warnings on healthy foods. But trial lawyers persisted — and when their cases were put on hold by a California court, Attorney General Lockyer stepped in and asked for the stay to be lifted.  The cases are still pending today.

If Lockyer and his trial lawyer friends prevail, companies could have to add acrylamide warning labels to potato chips, French fries, cereal, and even prunes. And if the companies that make these products have to add warning labels in California, they’ll have to do so in other states as well or risk additional lawsuits across the country.

Other states are getting into the act, too. New Mexico has been considering a bill to ban aspartame, the sweetener used in many diet sodas and low-calorie foods, because of recurrent allegations that it causes some type of cancer. Too bad that both FDA and the American Association of Cancer Research (in a statement released just last week) have declared aspartame safe — and too bad for the thousands of New Mexicans who are trying to keep their weight down.  No word yet on whether New Mexico will drop the ban effort.

Trial lawyers in California and state legislators in New Mexico shouldn’t be making food policy that affects all Americans.

Instead, Congress is currently considering a bill that would provide national uniformity for food warning labels and preempt state laws like Prop 65. Just as with nutrition information, the FDA would be responsible for deciding what warning labels ought to be required. Their decisions will be based on careful study and sound science, not the latest CSPI press release.

Many conservatives will no doubt balk at the idea of Congress giving FDA additional regulatory authority. But this is one of those rare cases where such regulation is warranted. Through Prop 65, California is able to impose its will on all of the other states and impact businesses and products that are being sold nationally. It’s precisely this sort of meddling in national commerce that helped spawn our Constitution in the first place.

But uniformity isn’t just the right approach for commerce. It’s also the right approach for consumers. Already, California consumers are ignoring the explosion of Prop 65 warning labels that adorn seemingly everything in their state. Instead of this hodgepodge of worthless warnings, consumers ought to be able to rely on labels to be useful and relevant to their lives.

It’s time to restore sanity to food warning labels and stop the food police and the trial lawyers from dictating our diets before it’s too late.