California’s Proposition 65 Snares Refreshment Service Operator; Uniform Food Safety Is Needed To Prevent Messes Like This

May 25, 2011
Dr Soda’s current situation demonstrates the unfairness of “Prop 65.” It also demonstrates that refreshment service operators are subject to such unfairness.
A recent letter from a Los Angeles law firm to a Southern California refreshment services operator demonstrates the need for sensible food safety laws. VendingMarketWatch reported two days ago that Pacoima, Calif.-based Dr Soda Co. received a letter from a law firm giving Dr Soda Co. the option to pay $60,000 to resolve a potential liability for a certain type of potato chip or face possible legal action.Dr Soda was notified for failing to provide clear and reasonable warnings that ingestion of certain products would expose consumers to dangerous levels of acrylamide under Californias Proposition 65. An organization claims to have determined that a product Dr Soda carried contained dangerous amounts of acrylamide.Don Rubenstein, owner of Dr Soda Co., says he has no intention of paying the money. In the meantime, hes not very happy with the situation, and I cant see who could blame him.I asked the attorney whose firm sent Dr Soda the letter, David Rosen of Rose, Klein & Marias LLP, how Dr Soda could have known it was in violation of Prop 65.Rosen admitted that it is possible a company can find itself in trouble without having any reasonable way of knowing it beforehand. A company would have to test every product it carries to know if it has a dangerous amount of acrylamide. Rosen admitted this would not be feasible for many companies.In Dr Sodas case, even if the company does Opt In, pay the $60,000 and abide by the terms of the settlement, there is no guarantee the company wouldnt find itself in violation of another product that some outside party finds violates Prop 65.Californias Prop 65 is an arbitrary approach to food safety. It demonstrates the need for uniform food safety laws.This was the rationale behind the National Uniformity for Food Act of 2006. The bill sought to provide consumers with a single set of food safety standards. The U.S. House of Representatives passed the National Uniformity for Food Act of 2006, but it got stuck in committee and never came to a vote in the Senate.Proponents of national uniformity of food safety rules cited Californias Prop 65 as an example of the problems that arise when states enact their own food safety laws.As for acrylamide, the U.S. Food and Drug Administration (FDA) has been reviewing comments and literature about acrylamide and at this time has not made any recommendations. An Internet search indicates there is concern about some levels of acrylamide, but the level of risk to consumers is not clear.FDA guidelines for acrylamide are expected to be forthcoming, according to Food Safety News.The food industry has supported laws that protect consumers from unsafe food and at the same time do not pose onerous burdens on food companies. The two goals are not mutually exclusive: laws that businesses can meet will be more likely to be adhered to and easier for government to enforce.Dr Sodas current situation demonstrates the unfairness of Prop 65. It also demonstrates that refreshment service operators are subject to such unfairness.