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Logo Icon Processed Meats May Become a Focal Point for Future Proposition 65 Litigation

In October 2015, the World Health Organization ("WHO") released a study finding that processed meats such as salami and bacon can increase the likelihood of colorectal cancer in humans. As a result of these findings, the State of California is reportedly analyzing whether processed meats fall within the purview of California's Safe Drinking Water and Toxic Enforcement Act of 1986 ("Prop 65"). However, in spite of the findings in the WHO study, processed meats may be exempt from the labeling requirements of Prop 65, even if they do fall within the purview of Prop 65.

Prop 65 requires the State of California to maintain a list of substances known to cause cancer. One of the primary goals of Prop 65 is to protect consumers from exposures to substances known to the State of California to cause cancer by requiring Prop 65 compliant warnings in advance of those exposures. While many industry insiders anticipate that California will add processed meats to the Prop 65 list, it is entirely possible that the meat industry will not need to comply with the labeling requirements of Prop 65.

The Office of Environmental Health Hazard Assessment ("OEHHA"), which is part of the California Environmental Protection Agency, is charged with implementation of Prop 65 and has adopted regulations establishing NSRLs, exposure levels at which specific listed substances are deemed to pose no significant risk. (Cal. Code Regs., tit. 27, §§ 25701 et seq.) Generally, a business need not comply with the Prop 65 warning requirements if exposure to a substance occurs at or below these NSRLs. Even if there is no NSRL creating a "safe harbor," a business may be exempt from the warning requirement of Prop 65 if it determines, through a quantitative risk assessment conducted by the business, that exposure to a substance would not result in more than one excess case of cancer in an exposed population of 100,000 — assuming a lifetime exposure of 70 years at the level in question. (Cal. Code Regs., tit. 27, § 25703, subd. (b).)

Regardless of the above labeling scheme, many are adamant that the meat industry will escape having to place Prop 65 compliant warning labels on packages containing processed meats based on the holding of American Meat Institute v. Leeman (2009) 180 Cal.App.4th 728 (American Meat Institute). In American Meat Institute, the California Court of Appeal held that the Federal Meat Inspection Act (21 U.S.C. § 601 et seq. ("FMIA")) preempted Prop 65 point of sale warning requirements with respect to meat. (American Meat Institute, supra, 180 Cal.App.4th at p. 734.) AlthoughAmerican Meat Institute only specifically addresses non-processed meats, the FMIA regulates meat and food products made from meat. Therefore, it is possible, if not likely, that the preemption established in American Meat Institute will apply to processed meats.

Regardless of whether the labeling requirements of Prop 65 are ultimately preempted, if the State of California adds processed meats to the Prop 65 list of substances known to cause cancer, it will likely result in a flurry of litigation. The meat industry will certainly challenge any attempt to require Prop 65 compliant warnings on processed meats and private watchdog groups will bring actions against those in the meat industry that do not place Prop 65 compliant warnings on processed meats.