Prop 65 Warnings on Food Labels -- How concerned should we be?

an Asian food importer offers insights

Hello there!

Weekends are my days for considering big ideas or just chillaxing. Today, I have something for us to consider — the Proposition 65 warnings that appear on food labels. This topic is more of a puzzle than a downer.

Earlier this week, John, a long time generous PTFS subscriber and dear friend, asked this:

You’ve seen them, haven’t you? Below are a few from my kitchen: Megachef oyster sauce, Well-Pac dashi kombu, Dragonfly fried shallots, and Assi ground kelp.

Here at PTFS, I nudge you to source and use Asian ingredients. I’ve offered you my master list of Asian ingredient superheroes plus a downloable cheat sheet (a paid subscriber exclusive).

But you may wonder: Is she telling me to put my health at risk for the sake of mapo tofu? Is the Megachef oyster sauce that many foodies adore going to kill me with lead and cadmium?

If I suggest that you to cook with these ingredients then I owe you thoughts for negotiating these product label warnings. I’ve thought about the Proposition 65 warnings and avoided writing about it because I’m not a food safety expert.

But in this dispatch, I’ll summarize what I found out this week about Proposition 65 and food. Take a read and please share your thoughts, including how you have dealt with the warning labels, especially on Asian food products.

What is Proposition 65?

Officially called the Safe Drinking Water and Toxic Enforcement Act of 1986, Proposition 65 (“Prop 65”) is a law in California. It started as a proposition and voters approved it by a 63 to 37-percent margin in November 1986.

When you see it, the warnings are advising you about “exposures to chemicals that may contribute to an individual's overall lifetime risk of cancer or risk of birth defects or other reproductive harm.” I’ve just quoted that from the California state government’s Prop 65 warning website.

You may see the warning on many things, including buildings, household appliances, backpacks, faucets, children’s jewelry, and food labels. The warning label is required when there is a “significant” level of potential risk. The warning is not required if the risk level is low.

In addition to John’s question, he sent this photo from an Japanese chain restaurant:

Prop 65 warnings take a lot of joy out of food, cooking, and eating.

California state government’s Prop 65 website suggests that concerned consumers ask the business (or product producer) about what prompted the warning label.

The site has a lot of information and warnings, including 75 fact sheets on common Prop 65 chemicals, products, and places. John’s restaurant warning photo got me reading about how certain vegetables may release acrylamide during the cooking process.

The “Acrylamide Fact Sheet” recommends deep frying at 338F or below to prevent acrylamide from happening. Whoever prescribed that idea is not a cook. The document does, however, have feasible ideas like soaking raw potato slices (what about other cuts?) in water for 15 to 30 minutes to remove some of the “precursors to acrylamide formation” before frying or roasting.

All of this is very confusing, potentially scary, and brings up so many questions, especially for Asian market shoppers. In the U.S., chances are that you’ll see the warning on many Asian food products because they’re sold in California and other states. Do consumers in the other states and U.S. territories not care, or do they have immunity that we Californians don’t know about?

Why do so many Asian imported foods have Prop 65 warnings? Are they safe to eat?

I cannot recall seeing Prop 65 warnings on imported products sold at Eataly. How about you?

This may be me, but is appears that a lot of imported food products from Asia have the Prop 65 warning. Why?

I could have looked up the position of consumer advocacy groups. But, rarely do we hear the perspective of an importer or manufacturer. So, I asked the head of a major U.S.-based importer of Asian food.

His company brings in food products sold at supermarkets and Asian grocers. The products his company sells are manufactured by others and also under his company’s own brand too. He’s got a lot of skin in the game. Because this is a sensitive and tricky issue, he requested anonymity.

His response:

There are generally three approaches in our industry. One approach is to simply label everything with Prop 65 warning and be done with it. The other is to get information from the manufacturer on specific chemicals before deciding what to label, if warranted. The trick is that there are over 800 chemicals on the state list of carcinogenic chemicals. It would be financially ruinous to test for all 800 chemicals. So we tend to test the most common chemicals and go from there. The last approach is to not test for anything and see if they get caught. The fine and settlement is considered as cost of doing business in California.

Generally speaking, because the label is everywhere, most of the consumers, if not all, have tuned it out. Prop 65 is no longer about removing the harmful chemical because you can still keep it in the environment as long as you have the label, which no longer served its purpose. Even what is on the list is problematic. Remember the acrylamide and coffee controversy?

Do you recall when coffee was deemed potentially hazardous to our health? That was so silly, especially how nowadays, moderate coffee consumption is said to be good for health. (And once again, acrylamide comes up!)

To summarize, a food producer may choose to:

1. Cover its butt and put the label on the packaging, even if it is not required.

2. Do due diligence to test rigorously for everything and swallow the costs.

3. Do partial due diligence to test for common toxic substances.

4. Wait and see. No testing, no labeling.

Why would you put a dire warning on your product if you don’t have to? His explanation:

Approach 1 is done because there is no penalty for mislabeling Prop 65 on a product that does not have carcinogenic chemicals. Thus, the incentive is to simply label everything generically and be done with it regardless of the presence or absence of carcinogenic chemicals.

This may explain why we see so many warning labels on Asian products. Manufacturers of Asian food products would rather play it safe.

We live in a litigious country and while there are many good reasons for protecting consumers’ health, there are also people who prey on food manufacturers. Again, from the food importer:

On a separate tangent for your information, in terms of enforcement, private enforcers and their attorneys tend to focus more on imported Asian products because of several factors. The importers are mostly small and midsize businesses. They don’t have the resources to drag out the lawsuits. Thus they would tend to settle as quickly as possible.

Secondly, most importers and overseas manufacturers have very low awareness of Prop 65. For the private enforcers, it’s easier to find something that can be subject to enforcement actions and thereby settlement. Private enforcers do look at this as a business, where can they easily get problematic products that can results in settlement? If I were them, that would be in my mind when I start searching for targeted products.

So this is my long winded way of telling you why the imported items tend to have more Prop65 warning labels than domestic. I don’t believe domestically produced products are cleaner, it’s just that they tend to take option 3 as their approach. One of our manufacturers has a sister company in the US. Even though they produce identical products here in the US, the US made products don’t have the warning label while the imported products have them. Go figure.

What are “private enforcers”?

I had to look them up. According to Proposition 65 analysis by Z2Data Solution, the law has created an industry of “bounty hunters” who greatly benefit from Prop 65.

The California state government agencies do not enforce the law. They rely upon lawsuits brought on by consumer advocacy groups as well as by individuals, lawyers and law firms. From Z2Data Solution’s analysis: “Those plaintiffs—or ‘private enforcers’, as they are often called—who succeed in their lawsuits are entitled to 25% of the civil penalties assessed by the court, plus reimbursement for attorneys’ fees.” That adds up to millions of dollars and as it turns out, the majority of the penalties.

If you’re a producer of say, fried shallots in Thailand, there may be only 2 or 3 ingredients in your product, but you might as well add a Prop 65 warning on as a shield from potential legal mishaps.

What are cooks and eaters to do?

I would not totally ignore the warnings because you don’t know what exactly motivated the warning label. What you can control is your consumption. The law itself is a warning about a potential elevated risk over a lifetime. I could get hit by a car crossing the street (drivers can be reckless in Santa Cruz!), but I will still walk across the street, after looking both directions several times.

So back to John, who kicked this conversation off. Should he use the fermented black beans (dou chi) and chile bean sauce (dou ban jiang) in his mapo tofu?

I say yes, go ahead. If if you cook your own mapo tofu, do it once a month. That’s different than eating a tablespoon of each ingredient daily (why would you do that anyway?). If you want my mapo tofu recipe, it’s here, in my book Asian Tofu, and at the New York Times.

That is my rational way of interpreting and negotiating Prop 65 warnings. What about you? If you have special experiences, do share them too. We’re here to learn from one another.