Something that every parent has the right to believe is not toxic for their infant to consume is baby food sold by national baby food companies (most of whom have been in that business for decades). As it turns out, that assumption is not necessarily correct.
In 2018 Consumer Reports issue a report on the results they had conducted which showed elevated levels of four metals: lead, cadmium, mercury and arsenic in a wide variety of baby foods. All of these chemicals, it should be noted, are covered and subject to regulation by Proposition 65.
In February of 2021, the U.S. House of Representatives’ Oversight Committee’s Subcommittee on Economic and Consumer Policy issued a report on the presence of those metals in baby foods. At the time of the report, they indicated that some national baby food manufacturers had failed to cooperate in their investigation.
In April of 2021 the FDA announced its “Closer to Zero” plan to reduce the levels of these toxic chemicals in baby and infant foods. Now, the good news is that such a plan does – sort of - exist. The bad news is that the FDA currently allows as much as 100 ppb of arsenic in rice cereals. That limitation is the sole regulation thus far issued to control the presence of these toxic metals in baby foods.
In late September of this year, the House Oversight Subcommittee issued a follow up report. (ECP Second Baby Food Report 9.29.21 FINAL.pdf (house.gov)). It included findings that, for example, some major companies practice of testing raw materials but not the finished product contributed to the risk of the increased metal levels (an outcome not at all surprising to those of us who have followed the Proposition 65 litigation concerning chocolates).
This most recent Subcommittee report reveals that sweet potato and rice cereals (“organic rice” – sounds like a good thing, right?) are particularly prone to elevated metal levels. The Subcommittee urged the FDA to, among other things, require testing of finished products, rather than just raw ingredients, and to lower the allowable standards for arsenic in rice products to 10 to 15 ppb, and to establish similar levels in other baby food products.
Recently, California Attorney General Bob Bonta joined with some 22 other State Attorney Generals to urge the FDA to adopt regulation to lower the levels of allowable toxic metals in baby foods. While the FDA adopts standards that it finds to be achievable, the Attorneys General are urging adoption of a modifying standard used in New York, called the “best performer” standard. That is, if one company can get the metals content of its baby foods down to a certain level, other companies should be able to do so as well, and that standard is adopted, because it is achievable.
How does this tie into California, you ask? Well there is the obvious: if the FDA adopts good standards, that benefits all of the country, including California (thus rob Bonta’s involvement).
What if there are standards adopted, but they are not strict? Can’t Proposition 65 protect our infants and babies? That’s where something called pre-emption comes into play: if the FDA has made a final rule on allowed levels of a chemical in a particular food (or the type of label to be placed on a bottle of wine…) then a given State cannot adopt a different, stronger standard.
A review of Proposition 65 Notices of Violation in 2020 and 2021 reveals a number of such notices related to lead in baby foods, mostly for sweet potato products. And since 2018, it reveals no Notices for arsenic in baby foods, despite the findings of the subcommittee.
Given the consumer Reports publication and the Subcommittee findings, this illustrates the effect of Federal pre-emption when we deal with Proposition 65. If Plaintiffs in Proposition 65 litigation seem to be overstepping rationality, Federal Regulations may be a way to correct the problem (assuming State legislators won’t concur).
