Updated October 27, 2:40 p.m. pdt.
This story will be just about impossible for anyone to miss: Yesterday, the International Agency for Research on Cancer ("IARC"), an agency of the World Health Organization, which is itself an agency of the United Nations, announced a monograph declaring processed meats (e.g., bacon, hot dogs, etc.) to be a "Group 1, Carcinogenic to Humans" carcinogen. This is the same level of carcinogenicity as asbestos and tobacco, which doesn't mean processed meats are as toxic as asbestos, only that the science is as strong. It also classified all red meats as "Group 2A, Probably carcinogenic to humans." The monograph isn't yet on the IARC web site, but it's press release and "FAQs" are.
Somebody from the press asked CBL today: "Does this mean red meat and processed meat will go on the Proposition 65 cancer list?" Interesting question, that. Here's CBL's thought process:
More after the jump.
To review, a chemical can be added to the Proposition 65 list of carcinogens if (a) the state's qualified experts are of the opinion it has been clearly shown through scientifically valid testing according to generally accepted principles to cause cancer; or (b) a body considered to be authoritative by such experts has formally identified it as causing cancer; or (c) an agency of the state or federal government has formally required it to be labeled or identified as causing cancer. Furthermore, the list is to include, at a minimum, "substances" referred to by Labor Code sections 6382(b)(1) or 6382(d). Section 6382(b)(1) refers to "Substances listed as human or animal carcinogens by . . . IARC." So the IARC listing of processed meats and other red meats is what raises the issue.
But here is where it gets interesting. Proposition 65 requires a warning before exposing individuals to listed chemicals. The voters did not authorize a warning requirement for "substances." And yet, earlier this year OEHHA changed its regulations relating to the Labor Code mechanism to include substances as well as chemicals. Here are the changes to Title 27 section 25904:
(a) Pursuant to Section 25249.8(a) of the Act, a chemical or substance shall be included on the list of chemicals known to the state to cause cancer or reproductive toxicity if it is a chemical or substance identified by reference in Labor Code Section 6382(b)(1) or by reference in Labor Code Section 6382(d) as causing cancer or reproductive toxicity
(b) (1) A chemical chemical or substance shall be included on the list if it is identified classified by the International Agency for Research on Cancer (IARC) in its IARC Monographs series on the Evaluation of Carcinogenic Risks to Humans (most recent edition Monograph on the chemical or substance) based on sufficient animal or human evidence as: , or in its list of Agents Classified by the IARC Monographs, as: (A) Carcinogenic to humans (Group 1), or (B) Probably carcinogenic to humans (Group 2A) with sufficient animal evidence, or (C)Possibly carcinogenic to humans (Group 2B) with sufficient animal evidence.in Group 1, 2A or 2B and such classification is based in whole or in part on identification by IARC of sufficient evidence of carcinogenicity in humans or animals. For the purpose of this subsection, the term “sufficient evidence” as it applies to experimental animal or human evidence is as defined in the most recent IARC Monograph on the chemical or substance. (1) Carcinogenic to humans (Group 1), or (2) Probably carcinogenic to humans (Group 2A) with sufficient evidence of carcinogenicity in experimental animals, or (3) Possibly carcinogenic to humans (Group 2B) with sufficient evidence of carcinogenicity in experimental animals. A chemical or substance for which there is less than sufficient evidence of carcinogenicity in experimental animals and classified by IARC in Group 2B shall not be included on the list.
In other words, while the regulation use to say "chemicals,: now it says "chemicals or substances."
So, now what happens? OEHHA may give notice of intention to add "processed meats" and "red meat" to the Proposition 65 list. There will be a public comment period (probably a couple of months) and possibly a public hearing. Expect an uproar from the processed meats and cattle industries. If nobody gets the agency into litigation over the "chemicals" / "substances" conundrum, expect these to be added to the list.
But there won't be warnings: Seven years ago, in American Meat Institute v. Leeman (2009) 180 Cal.App.4th 728, the Court of Appeal for the Fourth District ruled that the Federal Meat Inspection Act (21 U.S.C. § 601 et seq.) expressly preempts conflicting state labeling requirements, and that signage requirements constituted labeling. So this may be one of those rare instances (prescription medicines is another) where a substance goes on the list but there is no warning requirement.
Photo by cookbookman 17; Creative Commons LIcense. No modifications made.
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