The Physicians Committee for Responsible Medicine (PCRM), a nonprofit founded by Dr Neal Barnard – a vocal advocate for plant-based diets – has been calling on California’s Office of Environmental Health Hazard Assessment (OEHHA) to add processed meat to the Prop 65 list since 2015, when the WHO's International Agency for Research on Cancer (IARC) classified processed meat as “carcinogenic to humans, based on sufficient evidence in humans that the consumption of processed meat causes colorectal cancer.”
Were OEHHA to do so, scores of products from sausages to deli meats, frankfurters and jerky would require Prop 65 health warnings, which feature wording such as: "⚠ WARNING: This product can expose you to chemicals including [insert substance here], which is known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov."
OEHHA: Prop 65 listing for processed meat would ‘result in an over-inclusive warning’
After five years of petitioning the OEHHA to take action, the PCRM filed a lawsuit in March 2020 seeking to compel Governor Gavin Newsom to add processed meats to the Prop 65 list.
In a letter to PCRM founder Dr Barnard published on its website however, OEHHA argued that processed meat is not a single chemical (like other substances on the Prop 65 list) but a heterogeneous collection of meats from different sources that are processed or prepared with different methods, which meant adding processed meat to the Prop 65 list would “result in an over-inclusive warning.”
The IARC, for example, has identified 'outdoor air pollution' as carcinogenic, but 'polluted air' is not on the Prop 65 list for obvious practical reasons, said OEHHA, which said it was also prevented by law from adding a category as poorly defined as 'processed meat' to the Prop 65 list.
"Implementing regulations require that a chemical or substance be identified in order to list it [on Prop 65]" said OEHHA in court filings from summer 2020... [However, ] IARC found that the cancer studies to date are not able to distinguish between, for example, nitrite-cured pork sausages and fresh pork sausages or hamburger prepared with only table salt, pepper, and spices."
Indeed, the definition of processed meat in the IARC's official monograph (published in 2018) "encompasses meat products that IARC acknowledges have not been specifically shown to be carcinogenic," claimed the OEHHA, which said the PCRM was effectively asking it to break its own rules by forcing food companies to add Prop 65 warnings to products that are not known to cause cancer.
Superior Court: Case must proceed
However, in a ruling dated May 28, 2021, after hearing arguments from attorneys from both parties, the Superior Court of California in Sacramento rejected OEHHA’s challenge (demurrer) to the legal sufficiency of the PCRM's petition, which means the case will proceed.
“The demurrer is overruled. Respondent shall answer the petition within 10 days.”
Sam Delson, deputy director for external and legislative affairs at OEHHA stressed that the court did not rule on the merits of the case, telling FoodNavigator-USA: "It simply declined to dismiss the case so that it can consider full briefs and arguments from both sides."
Mark Kennedy, VP legal affairs at the PCRM, said he was pleased the court had allowed the case to proceed: “We’ve spent years asking California to follow the law and add carcinogenic processed meat to the Proposition 65 list. Now, the state must stop stalling and allow this case, which could help protect Californians from certain cancers, to proceed.”
Plantcraft USA to Governor Newsom: 'I am writing to express my deep concerns..."
Plant-based meat companies also welcomed the ruling.
In a June 3 letter to Governor Gavin Newsom seen by FoodNavigator-USA, Jonny Hochschild, director of marketing at California-based Plantcraft USA, which makes plant-based deli meats, said: “I am writing to express my deep concerns that allowing companies to hide the true risks of their products is exacerbating our diet-related public health crisis…
“I believe that businesses like ours are unfairly harmed when others in the marketplace are allowed to deceive consumers... I respectfully call on you to fully comply with Prop 65 by adding processed meats to the list of cancer-causing substances and protect consumers, and the marketplace, from further harm.”
The North American Meat Institute did not respond to requests for comment on the lawsuit, but has argued that the IARC classification of processed meat as carcinogenic "defies both common sense and numerous studies showing no correlation between meat and cancer."
Asked specifically about nitrates used to preserve meats, NAMI added: "Numerous scientific panels have evaluated sodium nitrite safety and the conclusions have essentially been the same: nitrite is not only safe, it is an essential public health tool because it has a proven track record of preventing botulism."
Sharp rise in pre-litigation Prop 65 notices in 2020 driven by a handful of ‘bounty hunter’ plaintiffs, says Perkins Coie
Despite its laudable aims, Prop 65 has proved controversial given that the vast majority of firms sued over alleged violations opt to settle - even if they are supremely confident in the safety of their products - as the costs associated with mounting a defense (hiring a toxicology expert, legal fees etc.) will almost certainly exceed whatever amount plaintiffs demand in settlement, prompting some lawyers to argue that Prop 65 has turned into a form of “legalized blackmail."
According to a recent analysis by law firm Perkins Coie, there was a threefold increase in the number of Prop 65 notices served by plaintiffs on food, beverage, and supplement manufacturers last year, "jumping from 534 notices in 2019 to a record-breaking 1,546 notices in 2020.
"The spike in the number of pre-litigation notices has been driven primarily by a handful of new and aggressive 'bounty hunter' plaintiffs. Notably, however, the number of Proposition 65 settlements slumped in 2020, perhaps indicating that the new plaintiffs took a shotgun approach when issuing pre-litigation notices and may not have had the resources to pursue litigation.
"As before, the pre-litigation notices primarily target food products containing acrylamide, lead, and cadmium."
Are Prop 65 warnings pre-empted on meat products? No, claims PCRM
While some commentators have argued that Prop 65 warnings on meat products are pre-empted by federal meat and poultry inspection laws that prohibit states from imposing "marking, labeling, packaging or ingredient requirements" that differ from federal standards, Mark Kennedy, VP legal affairs for the Physicians Committee explained that the PCRM had "litigated that very issue in a prior Prop 65 case [vs McDonald's] involving a different substance that was already on the list."
He added: "Several restaurants argued that because the substance arose in chicken, which is subject to the USDA’s federal labeling scheme for poultry, every possible warning method... was pre-empted.
On appeal, he said, "the appellate court agreed with the Physicians Committee that the [Prop 65] safe harbor warning is an example of a warning not pre-empted by the federal law."
According to the IARC, ‘processed meat’ refers to “meat that has been transformed through salting, curing, fermentation, smoking, or other processes to enhance flavor or improve preservation. Most processed meats contain pork or beef, but processed meats may also contain other red meats, poultry, offal, or meat by-products such as blood. Examples of processed meat include hot dogs (frankfurters), ham, sausages, corned beef, and biltong or beef jerky as well as canned meat and meat-based preparations and sauces.”
So what is it about processed meat that the IARC believes potentially increases the risk of certain cancers?
According to the IARC: “Meat consists of multiple components, such as heme iron. Meat can also contain chemicals that form during meat processing or cooking. For instance, carcinogenic chemicals that form during meat processing include N-nitroso compounds and polycyclic aromatic hydrocarbons.
"Cooking of red meat or processed meat also produces heterocyclic aromatic amines as well as other chemicals including polycyclic aromatic hydrocarbons, which are also found in other foods and in air pollution. Some of these chemicals are known or suspected carcinogens, but despite this knowledge, it is not yet fully understood how cancer risk is increased by red meat or processed meat.”
IARC monograph working group member Kana Wu said switching to natural sources of nitrates such as celery juice was not likely to reduce risk, adding: "The source of nitrate added for meat preservation will likely not matter."