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IARC’s Classification of Red Meat and Processed Meats as Carcinogenic Exposes Food Manufacturers, Distributers, and Retailers to Proposition 65 Liability

Food-chicken-meat-outdoorsBandza_Alexander_COLOR By Alexander J. Bandza

The Internet was buzzing yesterday with news that the International Agency for Research on Cancer (IARC) of the World Health Organization (WHO) has classified red meat as a Group 2A carcinogen (“probably carcinogenic to humans”) and processed meat as a Group 1 carcinogen (“carcinogenic to humans”).  In general, IARC evaluates the environmental causes of cancer in humans, including chemicals (e.g., formaldehyde), complex mixtures (e.g., air pollution), physical agents (e.g., solar radiation), biological agents (e.g., hepatitis B virus), and personal habits (e.g., tobacco smoking).  IARC has long played a role as a source of scientific information that carries weight in federal and state regulation of potentially harmful substances and toxic tort lawsuits involving such substances.

Setting aside for a moment whether IARC “got it right” and what the court of public opinion will eventually believe, IARC’s classification has very real implications under California’s Proposition 65 for any manufacturer, distributor, supplier, or retailer selling processed meat in California.  Under Proposition 65, the Governor of California publishes a list of chemicals known to the state to cause cancer or reproductive toxicity.  And, once a chemical is on this list, any “person” that “knowingly and intentionally” exposes an individual to such a chemical without a “clear and reasonable warning” may be subject to liability from a state enforcement action or private parties, which includes per-day penalties and attorneys fees for private litigants. 

Notably, one of the ways that a chemical or substance can make this list—and therefore potentially trigger liability under Proposition 65 for failing to warn—is for IARC to classify the substance as a carcinogen, as it has done so here for red meat and processed meats.  Once potential liability under Proposition 65 exists, the generous rewards given to private litigants to sue under the statute means that nuisance (“sue and settle”) suits and demands to reformulate or place warnings on products will soon follow.  The historical experience of manufacturers, distributors, and retailers of products containing other listed Proposition 65 substances suggests that food manufacturers, distributors, and retailers should quickly apprise themselves of any obligations under Proposition 65 before an “environmental” non-profit tags them in a Proposition 65 lawsuit.

For example, the Center for Biological Diversity has already issued a press release on the subject, staking out its position that red meat and processed meats must be labeled.  IARC’s press release on red meat and processed meats can be viewed here, and its Q&A about the same can be viewed here.