Drop that french fry: Legislation targets state food warnings

WASHINGTON -- California importer Frank Lettieri is being sued for not warning his customers that his balsamic vinegar contains lead.

True enough, he says. But you would have to drink more than a pint of the vinegar every day to reach the government limit for safe exposure to lead. Most people just sprinkle a few drops onto salads or bread.

Regardless, a voter-passed law in California says consumers have a right to know about lead and other harmful chemicals. "The ironic part is, it will kill you in California, but it won't kill you in Nevada," Lettieri says. "It won't kill you anywhere else in the country."

Rather than wrestle with labeling laws that vary from state to state, the food industry wants Congress to prohibit states from requiring food warnings that are tougher than federal law.

In March, the House overwhelmingly approved legislation that would pre-empt state warnings. The Senate held a hearing on the issue in July.

As many as 200 state laws or regulations could be affected, according to the Congressional Budget Office. They include warnings about lead and alcohol in candy, arsenic in bottled water, allergy-causing sulfites and mercury levels in fish.

Opposition is fierce, especially in California, where voters put their right-to-know law on the books 20 years ago. Known as Proposition 65, the law has been used to reduce arsenic in bottled water, mercury in fish and lead in candy and dishes.

Sen. Barbara Boxer, D-Calif., said state warnings can fill critical gaps in federal law. Californians passed Prop 65 "because they wanted to know if dangerous contaminants were in their food and drinking water," Boxer said at the Senate hearing.

"And they knew such a law would encourage food manufacturers to provide a safer product -- because who wants to buy bottled water with an arsenic warning label?" Boxer said.

The food industry insists the California law is being exploited by bounty-hunting trial lawyers.

Exhibit A: Small-business owner Bill Stadtlander. He makes Wheatena, a hot breakfast cereal that is so wholesome, the federal government agrees it is good for your heart and bones and may reduce the risk of certain cancers.

But a lawyer in California says Wheatena could kill you.

Stadtlander is being sued because his cereal contains cancer-causing acrylamide, a chemical that forms naturally when starchy foods are baked or fried.

"I don't put acrylamide in my product. All I do is toast my product," said Stadtlander, whose company, Homestat Farms, is based in Dublin, Ohio. "If anybody has a stove or an oven, as soon as you start browning starches, you're creating acrylamide."

Acrylamide is giving the food industry heartburn. The chemical has a long history of industrial use, but four years ago, Swedish researchers discovered it can occur naturally in foods such as french fries, potato chips, cookies, crackers, cereal and bread.

As a result, California is suing McDonald's, Burger King, Frito-Lay and other companies to make them warn customers about acrylamide in french fries and chips.

California is not going after little guys like Lettieri and Stadtlander, said a spokesman for California's attorney general, Bill Lockyer.

The state targeted major burger and chip makers because their products have higher levels of acrylamide and are consumed to a greater degree, spokesman Tom Dresslar said. At the same time, Lockyer lobbied successfully for a law to curb abusive Prop 65 lawsuits, Dresslar said.

"You work to target the abuses and, as a result, strengthen the law," Dresslar said. "You don't junk it because some lawyers are out there abusing it."

Despite the reform measures, most companies decide it is far cheaper to pay the plaintiffs than to try to win, said Michele Corash, a lawyer who represents businesses in Prop 65 matters.

She said Lettieri and other balsamic vinegar companies could argue successfully that lead occurs naturally in grapes that are used to make vinegar.

Lettieri said he understands the need to protect people from harmful chemicals, but in California the law has gone from protecting consumers to harming businesses like his.

"Who wouldn't want to protect" kids? "I think that line's been crossed. It's being abused for financial purposes," he says.

The importer decided to settle the suit and began adding labels to warn grocery shoppers that his vinegar may contain lead. "It cost me a ton of money," Lettieri said. "And I don't think the public is going to be any safer."

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On the Net:

Food industry coalition: http://www.uniformityforfood.org/

Center for Science in the Public Interest: http://www.cspinet.org/

Congress: http://thomas.loc.gov

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IN REVIEW

FOOD AND DRINK: Laws for labeling food contaminants such as lead and acrylamide, which forms when starchy foods are baked or fried, vary from state to state.

PATCHWORK: As many as 200 state food labeling laws are stricter than federal laws.

FEDERAL STANDARDS: The food industry wants Congress to prohibit states from passing tougher laws. In March, they succeeded in the House. The Senate held a hearing on the subject in July.