Essential Living Blog

California Prop 65 Warning: Why is it on my SUPERFOOD?

WARNING: Too much water may cause drowning… =)

Did you find a “Cal Prop 65 Warning” on your Superfood package? The scary-sounding “warning” has nothing to do with your health. A poorly-written California law is being abused by unscrupulous lawyers out to make a buck with devastating lawsuits. To survive, natural foods companies are being forced to print this disturbing warning on perfectly healthy foods. 

Prop 65 Warning

A full day’s serving of vitamins, minerals, protein…and cancer??

Don’t Panic! It’s Organic!

Like any living food grown on clean organic-certified soil, superfoods contain naturally-occurring minerals in trace quantities.

Some of these minerals (iron, calcium, selenium) are healthy in the right dose, and unhealthy in extreme doses — but the naturally-occurring quantities of these substances found in typical foods don’t pose a health problem.

Even “chemicals” that we think of as toxic — elements like lead and cadmium — are naturally-occurring in the Earth’s soil and are present in everyday foods like carrots, beets, and chocolate.

Volcanic soil (like that on the island of Bali or the mountains of Peru and Ecuador) tends to be naturally higher in soil minerals like lead and cadmium, which is why much of the planet’s maca and cacao contains these elements in miniscule but measurable quantities. But these naturally-occurring soil minerals (aka “heavy metals”) are different from man-made chemicals — even if they have the same names.

Bound vs Unbound & Natural vs Man-Made

“Chemicals” like lead and cadmium are as natural as the iron, calcium, selenium, and other minerals you get from superfoods, and because they are integrated into the tissues of these plant foods (aka “bound”), your body absorbs and disposes of them very differently from “unbound” man-made chemicals.

In plant-based foods that contain naturally-occurring or “bound” lead, only 20% of this lead is actually absorbed because the rest is chelated in the fibers and tissue of the plant, and pass out of the body undigested. Similarly, for any naturally-occuring “bound” cadmium in plant-based foods, only about 4% is actually absorbed.

On the other hand, when heavy metals are mined and concentrated (for use in paint, batteries, and other industrial chemical products), they are quite dangerous. If they get ONTO food — say, dust from flakes of lead paint settling on lettuce grown next to an old building — not only are they much more concentrated, that loose form of the chemical is highly toxic because it hasn’t been bound by the process of root uptake and plant metabolism, or chelated with any other minerals in the soil.

Obviously, we should have laws that keep industrial chemicals out of our air, water, soil, and food…But that’s not what Prop 65 is doing.

Proposition 65: Good Intentions, Bad Law

California’s Proposition 65 is the most stringent purity standard in the world…perhaps too stringent.

prop-65-warning

Creamer. Sweetener. Cancer!??

You will often see a Prop 65 warning on products even when the chemicals are present at levels a thousand times lower than those considered safe by the FDA, EPA, and WHO.

Even worse, this warning shows up even when those “chemicals” are naturally-ocurring constituents of the soil the products were grown in.

It is extremely expensive for a small company to prove that a substance is naturally occurring, so it’s cheaper to print the warning.

Because of this poorly-written California law, Californians are used to seeing (and ignoring) this warning everywhere — from apartment buildings and parking garages to the local Starbucks… and even the  aisles of organic and natural retailers.

Why?

In order to stay in business, many companies pre-emptively post the Prop 65 warning even if they believe the chemicals are naturally occurring and safe, simply because the risk of NOT posting the warning is too great.

Under Attack: Organic Superfoods & Supplements
Navitas-Prop65-Warning-chemicals-state-of-california-cancer-superfoods-heavy-metals 2

Maca Powder from Navitas now carries the Prop 65 warning, because…lawyers!

Just in the last few months, the superfood industry has become the latest victim of Prop 65 profiteers.

Brands like Navitas, Sunfood, and Organic India were slammed with massive lawsuits, forced to settle for huge sums, and are now being forced to put this scary-looking warning on their wholesome, pure, organic products: “Warning: This product contains chemicals known to the State of California to cause cancer and birth defects or reproductive harm.”

sunfood-prop-65-lead-warning

The Legal Notice Sent to Sunfood for Selling Products with Naturally-Occurring Lead Content…

Retailers Under Fire

Even retailers are under attack. Two of the biggest natural groceries in California were sued over lead content in ginger candies, and are now displaying Prop 65 Warnings in their store — just in case a product they carry hasn’t been labeled with the warning.

Although California retailers may worry about the affect a Prop 65 Warning label will have on sales, the greater concern is the impact a Prop 65 lawsuit would have on your business. If you’re selling superfoods (cacao, maca, goji, etc) that don’t have the prop 65 warning on them, it’s smart to contact the supplier and make sure that they’re testing and properly labeling.

Fortunately, Essential Living Foods is fully compliant with Prop 65.

What A Prop 65 Warning Label MEANS

Does a Prop 65 Warning label mean that an organic superfood product actually causes cancer and birth defects?

There’s absolutely no proof that they do. And California’s Office of Environmental Health Hazard Assessment clearly states that a

“Proposition 65 warning does not necessarily mean a product is in violation of any product-safety standards or requirements.”

Of course chemicals like lead and cadmium can cause serious health problems…but in high doses. Unfortunately, the wording of the Prop 65 Warning suggests that using labeled products would expose you to cancerous quantities.

In the case of natural foods, this couldn’t be further from the truth!

Our Take on Prop 65

Personally, we at Essential Living Foods eat organic superfoods, herbs, and supplements every day — both from our own company and from the hundreds of other organic-certified brands sold at groceries and co-ops in California.

Our foods and supplements meet or exceed all national safety standards, but because of tiny amounts of naturally-occurring lead or cadmium, we must include the Prop 65 warning on some of our products — mostly cacao, maca, and some dried berries.

Our competitors (and friends) have been forced to pay exorbitant sums to settle Prop 65 claims, even though their products are well within federal safety standards, and even though the required warnings provide no meaningful guidance to consumers.

We regularly test our products for compliance with all standards, including Prop 65. We work closely with our suppliers to ensure the cleanest possible farming and processing conditions. We believe these products are among the cleanest and healthiest on the planet, and they are compliant with all national standards required by the FDA and USDA. All of our retail products (with just a few exceptions) are certified Organic, Non-GMO, Kosher, and gluten-free.

How do the Prop 65 standards compare to the rest of the country?

The U.S. FDA and EPA (in dialogue with national and international bodies focused on science and health, from the World Health Organization to the European Union) have compiled extensive research on health and toxicity of common chemicals and set reasonable guidelines for maximum safe exposure levels.

Besides California, all 49 States have adopted Federal guidelines as their own safety indicators.

California’s Prop 65 is literally the most stringent standard on the planet, requiring a consumer warning for the presence of even minuscule amounts of common chemicals and naturally-ocurring elements.

Which chemicals require a Prop 65 warning?

Prop 65 is based on a continually-expanding list of chemicals compiled by the State of California. When Prop 65 went into effect in 1987, there were about 30 chemicals on the list, but as of 2011, the list had grown to well over 800 different chemicals.

No natural product manufacturer can afford to routinely test for all of these chemicals.

We do, however regularly test for the “big four” — arsenic, cadmium, mercury, and lead — and our products consistently test among the cleanest in the industry. We regularly reject potential suppliers whose products don’t meet our specifications for purity and safety.

What levels of chemicals require this warning?

Prop 65 cannot ban or recall a product. That’s up to the FDA.

Prop 65 sets a base level, past which a warning is required. That base level is sometimes 1,000 times lower than normal “safe exposure” amounts — just to be safe.

How low are these levels?

Example: Lead Standards for Food & Supplements

The graph below compares the amount of naturally occurring lead in an adult-size serving of typical foods. The green line at the bottom is the lead level that triggers a California Prop 65 Warning.
lead-graph

As you can see, our superfoods are already low in lead compared to typical foods. If you eat pretty much any root vegetable or leafy green, you’re already getting more than California’s Prop 65 warning level.

Should you be worried? We don’t think so.

Why?

Because your body can easily eliminate this much lead on its own with no negative health effects. (And remember that bound lead in whole foods is different from loose lead contamination in air, water, or processed industrial foods).

Auto Detox: The Amazing Human Body

How much lead can the body handle per day?

This much (Get ready to scroll down for a while!)
lead-graph-zoomout

  • FDA and EPA recommend that adults not consume more than 75 micrograms of Lead per day.
  • Prop 65: requires a warning for as little as 0.5 mcg of Lead in a single serving (almost 150 times lower than the adult daily limit.

For reference, according to the FDA, 1 cup of carrots contains about .14 micrograms of  lead. When grown in soil with a moderate lead content (500 ppm), spinach and radishes can have lead levels that exceed 3 micrograms/gram, while beets and carrots can exceed 6 micrograms/gram.

Note that the FDA/EPA recommendations are lower for children and nursing mothers.

  • Nursing mothers should not exceed 25 micrograms, children shouldn’t exceed 15 micrograms, and young children shouldn’t exceed 6 micrograms
Dry vs Fresh Foods: Tipping the Scales

Since dehydrated foods (powders, nuts, berries) lose as much as 90% of their water when dehydrated, which makes their levels of lead and other chemicals seemingly higher than in fresh foods.

Not only that, root crops (such as radishes, beets, carrots, or superfoods like maca or burdock root) absorb lead from the soil, plus it is difficult to remove all soil after harvest, even with high-pressure sprays. Even a tiny amount of remaining soil can push a food over Prop 65′s lead limits.

This is why many herbs and superfoods, especially maca, now have to bear the Prop 65 warning. Even when a superfood is clearly within Federal and International safety levels, the slightest chance that there will be a trigger level of lead (or any of the other 800 compounds on the list) means that printing a Prop 65 warning is the only way to avoid expensive lawsuits.

What are the Heavy Metal Limits in Prop 65 vs National Standards?
Lead

PROP 65 Warning triggered: 0.5 micrograms / serving

FDA Tolerable Intake Level:
adults: 75 mcg
children: 6 mcg

For reference, a 4oz serving of nuts, brussel sprouts, spinach, or cucumber can deliver up to 10 micrograms of naturally-occurring lead!

Cadmium

PROP 65 Warning triggered at: 4.1 micrograms / serving

FDA RfD (based on No Observed Adverse Event Level measurements): 0.001mg/kg-bw/day (so that’s 0.09mg/day for a 200lb person, or 90 micrograms per day.

See the difference? 4 micrograms (WARNING!) vs. 90 micrograms (YAWN!).

Put another way, a 100lb woman would have to eat over 10 servings, and a 200lb man would have to eat over 20 servings of cacao at the Prop 65 warning level just to reach the exposure level that FDA still considers safe.

How Did This Mess Happen? The Story of California Prop 65…

In 1986, Californians passed a ballot initiative called Prop 65. Designed to prevent dumping of toxic chemicals in California waters, Prop 65 also mandated warnings on products containing certain chemicals or heavy metals such as Lead, Arsenic, Mercury, or Cadmium.

Prop 65 is enforced by lawsuits, which can be initiated by the State, by individuals, or by for-profit law firms. Although the law was well-intentioned, it has caused many unforeseen consequences.  And because it was passed by a ballot initiative, avoiding the usual legislative process, it is difficult to change.

Prop 65 applies to any product or service received or used in California. As applied to foods, Prop 65 makes no distinction between natural and artificial products.  And although it excludes “naturally occurring” chemicals in foods, that term does not include man-made pollutants that may end up in natural products through processes outside of the manufacturer’s control.

Prop 65 does not distinguish between chemicals that result from natural phenomena like volcanic activity; chemicals that result from worldwide soil, water, and air pollution that are naturally absorbed by plants; those that are the result of local/regional problems like pesticide overspray or chemical leaks; those that are intentionally applied like synthetic fertilizers and pesticides; and those that are introduced later in drying, processing or manufacturing.

Prop 65 also does not limit in any way either the types or amounts of chemicals that can be put into a product, as long as the warning is given. Nor does the warning have to disclose the kinds or amounts of chemicals in the product.  If the regulatory “safe harbor” warning is given, then the seller is deemed to have complied with the law.  Businesses with less than 10 employees, and products that are within certain “safe harbor” limits, described further below, are exempt from the warning requirements.

Who enforces Prop 65?

Prop 65 actions can be brought by the California Attorney General or certain other public authorities, or by anyone who chooses to bring suit “in the public interest”.  Over the years, a number of “professional plaintiffs” have brought Prop 65 lawsuits, the vast majority of which are settled.  In 2010 private plaintiffs settled 187 lawsuits for amounts totaling nearly $14 million.   One Prop 65 plaintiff filed hundreds of such suits against dietary supplement manufacturers in 2009-2010.  Most were settled for significant sums, which could then be used to finance more lawsuits.

Why not just fight Prop 65 lawsuits?

Prop 65 puts almost all of the burden of proof on manufacturers.  For example, instead of requiring a plaintiff to show that the warning is required, the manufacturer is required to show that the warning is NOT required.  In addition, the law requires the business to prove prove that any listed chemical in the product is “naturally occurring”, meaning that it may not be man-made in origin, even if the process that got it into the plant is as natural as rain and plant transpiration.

For lead in soil, this burden is impossible to meet: most lead in superfoods is of man-made origin, even when deposited by rain in the pristine forest lands where wild-crafted and organic-certified foods are grown.  Under Prop 65, farmers (and manufacturers of herbal products) are responsible for man-made pollutants in the water, soil or air, no matter who originally caused them. If the manufacturer’s defense is not successful, Prop 65 imposes a heavy penalty on the business for failure to warn, which increases for every day that the warning is not given, and the business is also required to pay the successful party’s costs and legal fees.

Even if the manufacturer wins, he still has to pay his own legal fees, which are significant, and which by law he cannot recover from the for-profit law firm who brought the suit.  Although in the past the State of California has taken some action to curb abusive litigation, it has an interest in ensuring that enforcement actions are filed.  Because of these lopsided rules, the manufacturer has everything to lose and almost nothing to gain by going to trial, so almost all Prop 65 cases are settled for substantial sums, whether the manufacturer actually did anything wrong or not.

Learn More

Great Overview on Heavy Metal Hysteria:

http://jonbarron.org/diet-and-nutrition/heavy-metal-hysteria#.U5iOzMbUws0

Naturally occurring lead in soil:
http://www2.epa.gov/lead/protect-your-family#soil

Heavy metals in common foods:
http://www.fda.gov/downloads/Food/FoodScienceResearch/TotalDietStudy/UCM184301.pdf

Prop 65 Extortion Payouts

http://oag.ca.gov/sites/all/files/agweb/pdfs/prop65/Alpert_Report2013_summ.pdf?


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