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California Sues to Require Cancer Warnings on Potato Chips and French Fries

Action Against Nine Firms Says Warnings Required by Proposition 65

August 27, 2005

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California Attorney General Bill Lockyer has filed suit against nine manufacturers of potato chips and french fries, seeking a court order that will require the firms to warn consumers that some of their food products contain acrylamide, a chemical known by the state to cause cancer.

"In taking this action, I am not telling people to stop eating potato chips or french fries," said Lockyer. "I know from personal experience that, while these snacks may not be a necessary part of a healthy diet, they sure taste good."

But Lockyer said California's Proposition 65 requires companies to notify consumers of potentially dangerous toxins in their food.

Earlier this month, a large long-term study found that women who consumed large amounts of french fries when they were teen-agers had a higher risk of breast cancer during their adult years.

Filed in Los Angeles County Superior Court, Lockyer's complaint alleges the companies have violated the landmark proposition enacted by voters in 1986. The law requires businesses to provide "clear and reasonable" warnings before exposing people to known carcinogens or reproductive toxins. The defendants in the lawsuit are:

• Burger King Corporation, french fries
• Cape Cod Potato Chips, Inc./Lance, Inc. (parent company), Cape Cod potato chips
• Frito-Lay, Inc./PepsiCo, Inc., Lay’s potato chips/Lay’s baked potato chips
• H.J. Heinz, Inc., Ore-Ida frozen potato products
• Kettle Foods, Inc., Kettle Chips
• KFC Corporation, KFC Potato Wedges
• McDonald’s Corporation, french fries
• Procter & Gamble Distributing Co./Procter & Gamble Manufacturing Co., Pringles
• Wendy’s International, Inc., french fries

A by-product created by the reaction of chemicals in food and high heat, acrylamide has been found at low levels in a wide variety of foods. The lawsuit asks the court to require warnings on potato chips and french fries because they have higher levels of acrylamide than other foods.

Acrylamide has long been known to exist in industrial products, and since 1990 has been on the Proposition 65 list of carcinogens. Prior to 2002, however, acrylamide was not known to be present in food. But in early 2002, scientists in Sweden made the startling finding that certain starchy foods cooked in high heat contain acrylamide.

Since the 2002 discovery, the World Health Organization, the U.S. Food and Drug Administration (FDA) and California’s Office of Environmental Health Hazard Assessment (OEHHA) have studied the issue.

OEHHA has gathered data and published a report which includes estimates of acrylamide levels for 40 foods. Given that assessment, it is estimated that consumers of french fries receive up to 125 times the amount of acrylamide that requires a warning under current regulations, while consumers of potato chips receive as much as 75 times the level requiring a warning. The report is available online at www.oehha.ca.gov/prop65/acrylamideqa.html.

Additionally, OEHHA has initiated formal rulemaking proceedings to determine the extent to which OEHHA believes warnings should be required on food products containing acrylamide. Lockyer said legal action is necessary to ensure appropriate warnings are provided on products containing particularly high levels of acrylamide.

Lockyer said he intends to work with the defendants in the case to find a way to effectively give consumers information about the acrylamide in their products, while at the same time preventing undue public alarm and unnecessary warning signs concerning foods that contain insignificant amounts of the chemical.

The Attorney General’s action is not the first to seek consumer warnings for these foods.

A private suit filed in 2002 by the Committee for Education and Research on Toxics (CERT) named McDonald’s and Burger King as defendants, and is pending in Los Angeles County Superior Court.

Another set of two private suits filed on August 3, 2005 by Environmental World Watch, Inc. (EWW) identified a number of the same defendants as the Attorney General’s suit. Additional actions were filed on August 25, 2005 by the Environmental Law Foundation.

The Attorney General will ask that all pending suits be assigned to the same judge so they may proceed in the most efficient way.

Since the initial findings of acrylamide in 2002, numerous tests have been conducted on the products in this case and confirm that they are subject to Proposition 65 warning requirements. Lockyer noted that the potato chips and french fries made by the defendants in his lawsuit have not been shown to contain more acrylamide than their competitors’ products. The firms were named as defendants, he explained, because they were the companies targeted in the actions filed by EWW, ELF and CERT.

Under Proposition 65, a private party intending to file a lawsuit must first notify the Attorney General’s Office. The Attorney General may sue the same defendants. If the Attorney General’s Office decides to file a lawsuit, the office typically takes over prosecution of the case against those defendants.

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