In a letter to Metzger, Deputy Attorney General Edward Weil also warned that suing large numbers of companies may not be appropriate or in the public interest, given the limited amount of information on the issue currently available. 

The developments come against a background of deepening industry concern about acrylamide. The chemical gained general public attention only earlier this year with the announcement of Swedish test results finding that the chemical may be in a variety of breads, biscuits, potato chips and fries.  Studies suggested that acrylamide is not present in the raw ingredients of the food but is formed by the cooking process.

In July, a coalition of 15 food industry trade associations sought immediate action from the Office of Environmental Health Hazard Assessment to block the application of Proposition 65 to acrylamide in a number of foods (see Prop 65 News, August 1, p. 8). Weil's letter echoed some of the points raised by the industry groups, including noting an exception that exists in the Proposition 65 regulations governing the no significant risk level for carcinogens. The normal 1 in 100,000 level does not apply in some cases, Weil noted, including where chemicals in food are produced by cooking necessary to render the food palatable or to kill bacteria.

The certificates of merit sent by CERT as well as the lawsuit itself cite medical studies indicating that the fries contain approximately 100 times more acrylamide than the maximum level permitted by the World Health Organization for drinking water. Weil wrote, however, that an alternate risk level might apply because of the regulatory exceptions. While the burden of establishing the applicability of this provision would be on the defendants in a civil action, we presume that [CERT] is not interested in filing a complaint merely in order to put the defendants to their burden of proof, or in order to use the litigation process to force warnings that may not be required by the law Weil wrote.

Weil, without disclosing the factual information submitted in support of the certificates, also said that the data appeared to be inadequate. We do not suggest that it will never be possible to craft a sufficient certificate of merit for similar allegations, he wrote, but we do not think this particular certificate is adequate with respect to the specific allegations of the notice.

Meanwhile, Weil also criticized a 60-day notice sent by the American Council on Science and Health (ACSH) to WholeFoods Market regarding acrylamide in bread. Deficiencies noted by Weil in a July 18 letter to the organization include the fact that notices were not served on district attorneys, the description of the products was not specific enough and that no supporting factual information was included with the certificate of merit.

The Council on Science and Health notice may be a stalking horse for an attempt to derail Proposition 65. Earlier this month, Henry Miller, a Hoover Institution fellow and a member of the council's board, called Proposition 65 a ridiculous law that is being challenged via the Whole Foods test case (see Prop 65 News, September 1, p. 15).

Truth to tell, the public interest being pursued by ACSH in this case is not the protection of consumers from a cancer-causing agent, or from the predations of Whole Foods, Miller wrote. He said the company's organic bread iris no more a health threat than is the infinitesimal amount of radioactive potassium that is a constituent of glass bottles and window panes.

Instead, ACSH reckons that the public interest is best served by the principle that laws should be based on sound science and not driven by unfounded, ideologically driven fears, Miller wrote. The case document cited in this article is CERT v. McDonald's (available from P65LR).

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