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In cancer-warning fight, court rules against California restaurants

August 13, 2010 |  6:20 pm
Signs warning that eating grilled chicken can cause cancer: Are they coming soon to a California restaurant near you?

Maybe.

A California appellate court this week reignited a case that alleges that the chicken-grilling process used by McDonald’s Corp., TGI Friday's, Applebee’s, Chick-fil-A, Chili's and Outback Steakhouse creates a cancer-causing chemical -- and therefore that state law requires the restaurateurs to warn consumers about it.

A watchdog group called Physicians Committee for Responsible Medicine said it tested grilled chicken samples from a variety of restaurants. They found, according to court documents, the presence of the chemical PhIP.

So they sued seven chains in 2008 in Los Angeles Superior Court, claiming that California law required the businesses to give customers a “clear and reasonable warning” about carcinogenic products in their food. They asked the court to force the restaurants to pay civil penalties -- a relatively stout max of $2,500 a day per violation -- and notify the public about the alleged carcinogens. (Burger King, which had been part of the original case, settled with the physicians group and isn’t part of the appeal.)

The group offered a couple suggestions on how the restaurants would word the warnings, such as “WARNING: WELL COOKED CHICKEN, INCLUDING THE CHICKEN SERVED IN THIS RESTAURANT, CONTAINS CHEMICALS KNOWN TO THE STATE OF CALIFORNIA TO CAUSE CANCER.”

The restaurants -- of course -- fought back and filed a cross-complaint. Their argument? That federal law preempted California’s Proposition 65 -- the Safe Drinking Water and Toxic Enforcement Act of 1986. The restaurants’ legal teams argued that such warning conflicted with federal policies put in place to curtail the spread of foodborne illness by encouraging the public to thoroughly cook chicken.

The lower court granted a summary judgment in favor of the restaurants in 2009. But on Thursday, the state’s Second District Court of Appeal reversed that judgment, and ruled that a federal law for cooking chicken didn’t preempt the state warning requirements.

(If you’d like to read the appellate court’s decision, you can find it here.)

The PCRM, of course, is thrilled. The restaurants and the California Restaurant Assn., of course, is clucking mad.

So it’s likely that both sides will be heading back to court over this debate. For now, the real question is this: PhIP is known to cause cancer in lab rats, but is the amount found in, say, a fast-food chicken sandwich enough to be dangerous?

The final ruling's still unclear. But the office of the state's attorney general, for one, isn’t in favor of adding grilled chicken to the list of things that need Proposition 65 warnings. Why? The agency reportedly had run its own tests and found that the amount of PhIP wasn’t enough to constitute a public health threat. Raw chicken, though, was a whole other concern...

-- P.J. Huffstutter

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