President of the firm Bill Stadtlander said the lawsuit, which targets his health-positioned cereal Wheatena, is enough to jeopardize his small business.
Addressing a Senate Committee last week on the National Uniformity for Food Act, Stadtlander used his case in defense of the proposed bill, which could standardize warning labels and food safety requirements throughout the US.
If there was a national standard, he said, food manufacturers would not be subject to prosecution under different state laws.
Stadtlander was one of the seven speakers addressing the Senate Committee on Health, Education, Labor and Pensions (HELP) on Thursday, in a hearing designed to examine the support and opposition for the proposed bill, which was approved in the House of Representatives in March and is now due to be considered by the Senate.
"I wasn't even aware of Prop 65 until I received notice of the lawsuit. I am in compliance with all Federal laws including NLEA labeling and health claims. And I know now that FDA actually says there should not be warnings on foods just because they contain acrylamide. But this lawyer claims that California law is otherwise," said Stadtlander, who created his company- Homestat Farm- after purchasing certain brands from ConAgra Grocery Products in 2001.
"It is extremely difficult as a small businessman to keep up with potentially 50 different state laws regarding ingredients and warnings," he told the committee.
Indeed, California's Proposition 65 is the state law that would be particularly affected by the National Uniformity for Food Act. The law, which is more stringent than federal regulations, requires that food manufacturers alert customers about the existence of cancer-causing compounds in food.
And acrylamide is considered such a compound.
Acrylamide hit the headlines in 2002 when scientists at the Swedish Food Administration first reported unexpectedly high levels of the potential carcinogen in carbohydrate-rich foods cooked at high temperatures. Studies indicate that the chemical causes cancer in rats. Toxicological data suggested that this substance might be directly or indirectly carcinogenic for humans too.
But because the compound is created when starchy foods are baked, roasted, fried or toasted, the compound has found its way into a significant number of consumer products.
Wheatena, a calcium fortified toasted wheat cereal with a high fiber content, is positioned as a healthy product. It has qualified for three different federal health claims: 'Heart Healthy', 'Bone Healthy', and 'May reduce the risk of certain types of cancer'.
"I am selling a product that reduces the risk of cancer. But to limit the lawyer's claims, I have to either remove the product from the market or put a cancer warning on it - a cancer warning on a product that nutritionists agree reduces cancer risk," said Stadtlander.
"Are you confused? I am. And consumers are sure to be confused if federal guidelines say a product may reduce the risk of certain cancers followed by a California warning that it may cause cancer," he told the committee.
According to Stadtlander, the alternative of a different label for one state than for the remaining 49 states is virtually impossible to implement because food chains and wholesalers pull from the same warehouse for different states and diverters move products around the country.
And to have a separate label with a different UPC code and carry duplicate inventory to conform to individual state requirements is an expensive and potentially confusing process, he said.
"I do not believe [the National Uniformity for Food Act will 'gut' the nation'sfood safety laws], but I do know that it will prevent a state from trying to dictate food policy to the rest of the country, and giving 'bounty hunter' lawyers a financial club to make me think twice about selling Wheatena in the state," he said.
Other speakers at last week's hearing included Georgia's Senator Saxby Chambliss, who expressed his support for the bill, and California's Senators Barbara Boxer and Dianne Feinstein, who reiterated their opposition.
Peter Hutt, senior counsel at Covington and Burling law firm also addressed the Committee, expressing his support for the bill and outlining its main features.
Another speaker was William Hubbard, a recently retired FDA official who has been involved in national uniformity for food safety repeatedly over the years. Hubbard expressed his opposition to the bill, stating that the FDA is under-resourced to conduct such a sweeping operation. He claimed that the bill was confusing in itself and would create a "vacuum in safety oversight".