Attack of the Killer Fries

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The New York Sun

For political zoologists, state attorneys general have long been one of the most fascinating species: third-tier politicians whose frustrations with their lowly position, combined with the corner-cutting ambition typical of modern litigators, force them to extremes of moral grandstanding that might shame an ordinary public servant.


This is certainly true of Bill Lockyer, California’s attorney general and perhaps the craftiest showboat in U.S. politics. His latest bid to grab headlines – and, not coincidentally, reward his friends and hurt his enemies – has startled even some of his political allies. He wants to label French fries.


But wait, you say: How can he get the ink to stick on something so greasy? To which I reply: When a state attorney general files a lawsuit, no practical consideration will stand in his way.


Besides, it’s the packaging Lockyer wants to label, including those little waxy sleeves the fries are served in, plus the packaging of frozen fries and bags of potato chips, too. He’s sued nine companies, including McDonald’s Corp., Burger King Corp. and Pepsi Inc.’s Frito-Lay unit, to force them to do so.


The label’s wording will probably be fierce, resembling something you’d see on a can of paint thinner: “This product contains chemicals known to the state of California to cause cancer and/or birth defects.”


Oh, yummy.


Lockyer says he wants to protect Californians from a nasty little chemical called acrylamide, commonly used in making paper and dyes, in grout and cement and in processing ore. By itself it probably tastes terrible.


Acrylamide in high concentrations has long been known to cause cancer, but before 2002 it was thought to pose risk only to workers who handled it in factories and on construction sites. Then Swedish scientists discovered that acrylamide was also formed naturally in the cooking of starchy foods, including grains (breads or cereals), nuts, some vegetables and potatoes.


Food-borne acrylamide, however, unlike the stuff you’d find in a puddle at a construction site, apparently has negligible effects because the doses are minuscule.


A study published in the British Journal of Cancer in 2003 concluded that “High levels of acrylamide in foods such as chips (British for French fries), crisps (British for potato chips), and bread do not seem to raise the risk of cancer.”


“There’s less to worry about than was thought,” said the lead researcher, Lorelei Mucci of the Harvard School of Public Health, in a press release.


The U.S. Food and Drug Administration, which oversees food labeling and has spent several years and millions of dollars testing food-borne acrylamide, doesn’t think labels are necessary. California’s Office of Environmental Health Hazard Assessment agrees, though it does favor placing signs about acrylamide in grocery stores.


All of which might deter an ordinary pol – or even a publicity-happy state attorney general. But Lockyer, a Democrat, is no ordinary pol, and the legal environment in which he operates isn’t ordinary either.


In 1986, California enacted Proposition 65, which allows private lawyers to sue a business that they allege has exposed the public to toxic chemicals without a suitable warning.


Proposition 65 has been a bonanza for trial lawyers, who have used it to collect money from hotels, country clubs, bait shops and makers of everything from billiard chalk to picture frames. At least three private Prop. 65 suits have been filed about food-borne acrylamide. By filing his suit on behalf of the state, Lockyer greatly increases the chances that the trial lawyers will collect money from manufacturers of the targeted foods – in extortionary out- of-court settlements if not in outright jury awards.


Will you be shocked to learn that trial lawyer associations are important financial and political supporters of the attorney general?


David Martosko, director of research at the food industry-backed Center for Consumer Freedom, points out another fortuitous alliance of interests.


“French fries and potato chips are the favorite whipping boys for nutritional activists,” he says, referring to the public scolds at such outfits as the Center for Science in the Public Interest, who agitate for labeling, taxing and even banning foods they consider unwholesome.


“There’s an odd synergy between the bounty-hunting trial lawyers and the activists who want to get different kinds of foods banned from school cafeterias,” Martosko says.


With the attorney general’s lawsuit, the chances for such a ban become much stronger. Martosko calls the combined assault from trial lawyers and nutrition activists a “pincer movement,” with the sellers of French fries and potato chips caught in its jaws.


But it won’t stop there. Martosko and other food industry spokesmen like to remind us that 40 percent of the calories the average American eats come from foods containing acrylamide. If the logic of Lockyer and his supporters is followed through, nearly half the processed foods on sale could be labeled as cancer-causing.


At which point, government labels will have become so ubiquitous that they will cease to have the desired effect – unless, of course, the desired effect all along has been to attract attention to a grandstanding attorney general.



Mr. Ferguson is a columnist for Bloomberg News.


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