Acrylamide Exposes Flaws in California Legislation

* If a cancer warning is placed on every food that contains acrylamide, the warnings could potentially cover 40 percent of the diet, according to an estimate from the National Food Processors Assn. The warnings would become meaningless to consumers at that point. Worse, if consumers were to adjust their eating habits to avoid acrylamide-containing foods, they would no longer enjoy a balanced diet.

* If acrylamide warnings appear on food products, they will presumably only appear on pre-cooked foods and will not apply to the formation of acrylamide when foods are cooked in the home.

* Warning statements required by Proposition 65 affect commerce outside California. Food manufacturers throughout the U.S., and those operating in other countries, must design a single label per product that can be used in this country. Uniform food safety and labeling requirements under FDA's primary jurisdiction would be preferable to a patchwork of state requirements. Manufacturers cannot reasonably be expected to follow labeling requirements emanating from all 50 states. Moreover, a Proposition 65 warning on acrylamide-containing foods would tend to contradict FDA's advice that consumers not change their diets, pending further study of this issue.

* The private enforcement mechanism under Proposition 65 invites abuse. The food industry has been subjected to seemingly extortionate enforcement actions involving substances that are truly ubiquitous.

* Proposition 65 has predictably spawned a small industry. At the time of its adoption, it was referred to jokingly as the "Lawyers' Relief Act of 1986." Many consultants, lawyers, toxicologists and trade publications derive a significant amount of their livelihoods from Proposition 65, and this is ultimately funded by the consumer. The benefit that flows back to the consumer is questionable at best.

The food industry has been aware of these problems for many years. They are dramatically illustrated by the controversy surrounding acrylamide. During the past year, Californians have had things to worry about other than Proposition 65 reform.

At the time of this writing, a more famous ballot initiative is pending in California which is likely to result in the recall of Governor Davis. Perhaps the real problem is that ballot initiatives can produce strange things. For now, we can hope that reasonable thinking will prevail in California on acrylamide and that Proposition 65 will eventually be reformed, federally pre-empted or, better yet, dismantled altogether.

DAVID JOY is a partner at the Washington, D.C., law firm of Keller and Heckman LLP. He specializes in food and drug law with emphasis on the domestic and international regulation of food, food additives, food labeling, antimicrobial pesticides, and medical devices. He is a member of the District of Columbia Bar and holds a bachelor's degree in chemistry. For more information about Keller and Heckman, visit the firm's web site at www.khlaw.com.