Prop 65 Acrylamide Litigation

On the heels of an enforcement action over exposures to lead from chocolates, and news of a study from Sweden, several 60-day notices have been served on fast food restaurants alleging that consumers are exposed to acrylamide from french fries and other fried snacks.

The first notice was served on May 1, 2002, by the Council for Education and Research on Toxics, alleging that McDonald's and Burger King caused exposures from french fries. Environmental World Watch served a slew of notices on June 26,against KFC of America, Inc. (KFC Potato Wedges, Jumbo), Procter and Gamble (Pringles Regular, Ridges, Reduced Fat, Fat Free and Snack Stacks), H.J. Heinz Company (Ore-Ida French Fries), General Mills, Inc. (Cheerios Brand Cereals), Wendy's International, Inc. (French fries, Biggie), and Frito-Lay, Inc. (Frito brand chips and Tosittos brand torilla chips).

Controversy has been swirling since the initial reports claiming to find acrylamide in fried starchy foods. A June 26 release from the Center for Science in the Public Interest claimed that "Popular American brands of snack chips and French fries contain disturbingly high levels of acrylamide, according to new laboratory tests commissioned" by the Center. The release contained a chart showing the following acrylamide levels according to their testing (which interestingly matches the alleged violations in EWW's 6/26/ notices):

The release stated that the "amount of acrylamide in a large order of fast-food French fries is at least 300 times more than what the U.S. Environmental Protection Agency allows in a glass of water," and claimed that acrylamide causes "several thousand cancers per year in Americans.”

A World Health Organization press release of June 27 recognized that the issue of acrylamide in food was "a major concern" but, according to Dr Dieter Arnold, Chairman of the United Nations Food and Agriculture Organization/World Health Organization hosted meeting in Geneva, "current limited knowledge does not allow us to answer all the questions which have been asked by consumers, regulators and other interested parties." According to a statement issued by the National Restaurant Association pointed out that "the research on this issue is still very preliminary and no conclusions can be drawn from the current studies." "Foods such as bread, cereal, French fries, among others, have been consumed for centuries. We want to remind consumers that there is no need to alter eating habits, either at-home or when dining out, based upon this information. And, scientists also have consistently maintained and agreed that there should be no change in diet."

A June 27 FDA press release stated that the agency was undertaking its own testing of acrylamide in food, and offered the following comments: "At present the data on acrylamide are not sufficient for FDA to make a final determination regarding the public health impact of these preliminary findings. FDA is unaware of any present data regarding acrylamide that would cause FDA to alter its current dietary recommendations for consumers. As further data are received, FDA's recommendations could change. For now, FDA continues to advise consumers to follow established dietary guidelines and eat a healthy, balanced diet consisting of a wide variety of foods from a variety of sources."

Attorney General Responds to 60-Day Notice, but does not Stop Litigation

Deputy Attorney General Ed Weil responded to the notice from the Council for Education and Research on Toxics with a letter to CERT's lawyer, Raphael Metzger. The letter noted that the AG's office was investigating the presence of acrylamide in certain cooked foods, and expressed concerns about the issue.

Based on publicly available information, Weil noted that acrylamide was found in McDonald's and Burger King french fries from Swedish franchises, there was no discussion of the source of those samples. Additioinally, the Swedish study had not been published in peer reviewed literature, and there had been no known release of any quality control data, or other validating information.

Although the letter did not specify what information had been disclosed by CERT with its certificate of merit, it did say that "we do not think that you have provided 'factual information sufficient to establish the basis of the certificate of merit.'" Weil's letter addressed the issue of no significant risk regulations, and concluded that, if acrylamide was present as a by-product of cooking, the exposure could fall within the "alternative risk level provisions" of Prop 65 regulations (22 CCR 12703(b).

The letter stated:

"Given the limited publicly available information at this time, Proposition 65 litigation against large numbers of food processors or sellers may not be appropriate or in the public interest. In fact, as you authorized me to state in this letter, you agree that the provision of sixty-day notices and filing of complaints against the vast numbers of retailers and providers of these food products in California would not be the best way to promote the public health at this time. Once further information concerning the nature and extent of the exposure is available, all concerned will be in a better position to evaluate whether action under Proposition 65, or other laws, is the way to protect the public health."

Despite Weil's letter, on September 5, 2002, CERT filed an enforcement action against McDonald's and Burger King (Council for Education and Research on Toxics, acting as a private attorney general in the public interest v. McDonaldís Corporation, Burger King Corporation, Los Angeles Superior Court no. BC280980).

Conservative Organization Threatens Whole Foods with Litigation

"Toxic Green," an article in Frontpagemagazine.com, has referred to the ACSH 60-day notice as "POLITICAL MARTIAL ARTS, whereby one can use an opponent’s own strength and movements to defeat him." "We are not suggesting that their whole-wheat organic bread is dangerous. We are not seriously suggesting this bread can make you sick. Clearly people are not at risk," said Jeff Stier, associate director of the ACSH, in a Reuters article. "We want the American public to focus on the real health concerns, such as cigarette smoking and wearing bicycle helmets and eating a diet rich in fruit and vegetables, rather than focusing on food scares," Stier told Reuters.

Whole Foods' spokesperson Kate Lowery responded in a CNS News.com article that "We agree with the absurdity of what they're trying to propose in their news release. We obviously don't agree with them using our name."

Further media reports can be found in

• "Organic Industry’s Thin Skin," from foxnews.com
• "We, the jury, find the defendant 'starchy'," from consumerfreedom.com
• Google search for "Whole Food" and acrylamide

Weil also responded to the ACSH notice with a July 17 letter, informing ACSH that the 60-day notice was insufficient. In addition to referring to his letter to Metzger, the letter found numerous deficiencies in the 60-day notices:

• It was not served on any of the California district attorneys
• The notice did not include any of the "factual information" that supported the certificate of merit required by SB 471
• The notice was deficient in describing the products at issue

This page last updated 9/15/02