Reuters reports that California is considering adding processed meats (such as hot dogs, ham, and sausages) to its list of cancer-causing products. This comes after the World Health Organization (WHO) classified processed meats as carcinogenic to humans and advised people to moderate consumption of processed meat to reduce the risk of cancer. The WHO based its classification “on sufficient evidence from epidemiological studies that eating processed meat causes colorectal cancer.”

Under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65), the state is required to maintain a list of all substances known to cause cancer. Companies that sell products associated with these listed substances, either in combination with unlisted substances or alone, in California must provide “clear and reasonable” warnings on the label to inform consumers about the risk. Once a substance is listed, businesses are required to provide the warning within 20 months or otherwise must demonstrate that the anticipated exposure level will not pose a significant risk of cancer (stating “[n]othing in this article shall preclude a person from using evidence, standards, risk assessment methodologies, principles, assumptions or levels not described in this article to establish that a level of exposure to a listed chemical poses no significant risk.”).

However, if processed meats are included on the list, the meat industry can likely avoid the requirement of a Proposition 65 label on preemption grounds. The Federal Meat Inspection Act of 1906 (FMIA) contains a preemption provision that prohibits states from imposing labeling requirements “in addition to, or different from” the labeling required under FMIA. Pursuant to that provision, in American Meat Institute v. Whitney R. Leeman, a California appellate court concluded “that the FMIA expressly preempts [labeling] requirements imposed by Proposition 65 with respect to meat.” Although Leeman concerns fresh meat as opposed to processed meats, we expect preemption to extend to processed meats as well.