Reprinted from The Sacramento Bee (11/6/2015)

The recent finding by an international panel that eating processed meat increases the risk of cancer could trigger warning labels under California law and a legal battle by meat producers and their trade groups to avoid the requirement.

California is one of the country’s largest producers and consumers of meat, and the meat industry is likely to fight any effort by the state to label its products under Proposition 65. That law, approved by the state’s voters three decades ago, requires warnings about products that contain substances known to cause cancer.

“I expect to see a lot of activity from the meat industry about that process,” said Patty Lovera, assistant director of Food and Water Watch, a consumer watchdog group. “They’ll beat it down in the court of public opinion.”

Industry advocates and legal experts anticipate that the meat producers will try to cast doubt on the findings or downplay their significance and could take California to court over the labeling requirements.

“We may have to,” said Janet Riley, senior vice president for public affairs at the North American Meat Institute, the industry’s trade association. “The level of reaction is not proportional to the level of threat.”

California’s Office of Environmental Health Hazard Assessment, the agency that enforces Proposition 65, relies heavily on the World Health Organization’s International Agency for Research on Cancer for guidance on what to list and label as carcinogenic. In California, the body’s research is considered as authoritative as that of the U.S. Environmental Protection Agency and the U.S. Food and Drug Administration.

The agency has added about 800 chemicals to the list since it was first published in 1987. Once a substance is listed, businesses with 10 or more employees have a year to comply with its labeling requirements.

Based on hundreds of studies, the international panel last month added bacon, sausage, ham, hot dogs and other processed meats to its list of Group I carcinogens, which include tobacco and asbestos. However, the panel emphasized that the classification of processed meats in that category did not mean the danger was equal to that of those substances.

The panel also classified red meat as “probably carcinogenic” based on “limited evidence” showing a relationship between its consumption and colon cancer. Red meat includes beef, pork, veal and lamb.

The panel also cautioned that the cancer risk from meat consumption was relatively low compared with smoking and excessive drinking, and it acknowledged that meat has known health benefits.

Critics of Proposition 65, which passed in 1986, have argued for years that its public benefits are limited because it gives consumers little context or comparison of relative risk. A warning typically only states that the product in question contains chemicals or substances known by the state to cause cancer.

“It doesn’t tell them what the risk is,” said Karyn Schmidt, senior director for regulatory and technical affairs at the American Chemistry Council, a trade group in Washington. “People don’t know how much they can eat.”

Groups that support Proposition 65, however, say products should be labeled so consumers can choose whether to accept the risk of exposure to carcinogens and if not, choose other products instead.

“The solution to that problem isn’t to label less,” said Stephanie Feldstein, population and sustainability director at the Center for Biological Diversity, an environmental group. “It’s to have better products.”

California’s environmental health office will now consider the World Health Organization’s findings. Allan Hirsch, the California agency’s chief deputy director, said the next step would be to formally notify the public of its intent to list processed meat and red meat as carcinogens, and a public comment period would follow.

Groups on both sides anticipate that the meat industry will attempt to discredit the science of the panel’s research in a bid to head off a listing. But it could be tough to dissuade the state agency from disregarding a report from an international body whose work it considers highly persuasive.

“It would be an uphill battle for the industry to contest this on the science,” said Laura MacCleery, regulatory affairs attorney for the Center for Science in the Public Interest.

Meat producers might have better luck arguing that federal law pre-empts Proposition 65. The U.S. Department of Agriculture regulates meat labeling, and courts have struck down state laws when they have come in conflict with federal requirements, though not always.

Bill Lockyer, who was California’s attorney general from 1999 to 2007, said he doesn’t think federal law would bar warning labels under Proposition 65.

“Pre-emption is regularly asserted, and usually rejected by a court,” he said. “For most areas like this, we have independent regulatory authority.”

In 2004, Lockyer sued manufacturers of canned tuna to require Proposition 65 labels warning of mercury in the fish. The industry argued that federal law pre-empted California’s, and lower courts initially agreed. A state appellate court ruled in 2009 that pre-emption didn’t apply, but it sided with the tuna producers for other reasons.

“I still, to this day, think we were right,” Lockyer said.

The court said that tuna didn’t have to be labeled under California law for two reasons: First, that the levels of mercury in the fish didn’t rise to the threshold that would trigger the labeling requirement, and second, that the mercury occurred naturally in the fish, rather than something added by the manufacturer.

Lockyer said those might be better arguments for meat producers.

Industry groups may also leverage any potential process on listing meat products under Proposition 65 to change a law they’ve often criticized. Efforts to reform the law have the support of Gov. Jerry Brown and Attorney General Kamala Harris.

Supporters of the law, however, said it protects consumers.

“I think consumers would benefit from having information on the package,” said MacCleery of the Center for Science in the Public Interest.

Reprinted from San Jose Mercury News (11/3/2015)

by Jessica Calefati

SACRAMENTO — Next year’s election is still more than a year away, but the battle over California’s landmark ban of single-use plastic bags is already shaping up to be the most costly, high-profile fight over litter and recycling the state has seen in three decades.

Out-of-state bag makers leading the campaign to repeal a 2014 law banning their product spent $3 million on signature gathering alone — and in a surprise move recently filed another initiative on the same topic, a highly unusual strategy that appears to be the political equivalent of a trick play in football.

If voters validate the law next year, grocers will begin encouraging customers to use reusable bags by charging them at least 10 cents for every paper or thicker plastic bag they take at checkout. The new measure — expected to easily qualify for the ballot because bag makers can afford to pay signature gatherers — would force grocers to deposit those fees into an account for environmental improvement projects.

More money for drought mitigation, wetlands restoration and beach cleanup surely sounds appealing, but don’t be fooled, initiative experts say. Bag makers are promoting the Environmental Fee Protection Act in this business-versus-business fight to make Californians’ heads spin and perhaps entice grocers to spend money fighting the measure rather than opposing the referendum — not to help the environment, experts say.

“Voters faced with too many choices get confused, and confused voters tend to vote no on everything,” said John Matsusaka, executive director of the Initiative and Referendum Institute at the University of Southern California. “In this case, that’s exactly what the proponents of the referendum want.”

Grocers and environmental activists were on opposite sides of the epic fight in the 1980s to pass California’s “bottle bill,” which reduces litter and encourages recycling by requiring deposits on beverage containers. But they worked together last year to get Senate Bill 270 signed into law after a dozen failed attempts to pass similar legislation.

Frustrated by the patchwork of local bag bans that already cover a third of the state’s population, grocers supported the legislation because it creates a uniform statewide policy on carryout bags. Environmentalists liked it because it promises to wipe out a noxious form of litter that kills marine life.

But plastic bag makers, who stand to lose as much as $150 million annually in sales of their product to California retailers, refused to back down. They accused environmental advocates of exaggerating the harm done by plastic bags and called grocers greedy because they would pocket the 10-cent fees, even though the savings for grocers could be passed onto consumers.

The new law never took effect after the bag makers paid signature gatherers to put the issue on the ballot. Regardless of the outcome, the referendum has no impact on local ordinances.

Members of the American Progressive Bag Alliance — a coalition of bag manufacturers led by South Carolina-based industry giant Hilex Poly — declined to answer this newspaper’s questions about the group’s strategy or the impact the new initiative might have on the referendum campaign.

In a statement released last month, the group’s executive director, Lee Califf, said the alliance is proud to give Californians the chance to overturn a deeply flawed law that threatens jobs and provides “negligible environmental benefit.” At the very least, the statement said, the group wants to ensure that the bag fees are dedicated to helping the environment.

Filing an initiative whose topic matches one that’s already on the ballot is a classic strategy that is often used to create confusion. In recent years, voters have been asked to navigate competing income-tax measures (Propositions 30 and 38 in 2012) and competing redistricting measures (Propositions 20 and 27 in 2010).

What’s so unusual about the bag makers’ strategy is their commitment to support both the referendum campaign and a counter “poison pill” proposal that would take effect only if the referendum fails. Matsusaka said he’s never seen anything like it before.

Environmental activists trying to protect the bag ban say they’re dismayed.

“Bag makers are trying to goad retailers who support the bag ban into spending money against this initiative,” said Mark Murray, executive director of Californians Against Waste. “I was shocked by the audacity of this cynical, political move.”

The California Grocers Association insists that it backed SB270 to establish a uniform statewide bag policy, regardless of potential cost or revenue, said Dave Heylen, a spokesman for the group. And while the group hasn’t yet taken a position on the initiative, the grocers remain supportive of the bag ban, he added.

Bag makers’ insistence that the ban is a “cash grab” for grocers who supported the legislation because of the bag fees is a fallacy, said Murray, whose group also led the campaign for the bottle bill.

If the contested legislation takes effect, retailers that operate in cities not already covered by local bag bans will save $150 million annually on the plastic grocery bags they no longer need to purchase and distribute to customers for free, U.S. Environmental Protection Agency data shows. The allure of those savings is a bigger draw than having the $40 million grocers spend annually on paper bags covered in part by customer fees, Murray said.

Despite the likelihood that they’ll be badly outspent by the American Progressive Bag Alliance — likely by tens of millions of dollars — environmental advocates are confident they’ll prevail in the Battle of the Bags.

“Bag makers will spend big to try to buy this election, but in the end common sense will override this polluting industry’s vast expenditures,” said Kathryn Phillips, executive director of Sierra Club California. “The logic is simple. Californians aren’t going to let an out-of-state interest harm their environment.”