The danger of warning labels
Have you heard of the new Toxic Substances Warning Label Act (TSWLA)? I’m guessing no. One reason for this could be the TSWLA is not actually an enacted legislation, but a private members bill introduced by an MP from British Columbia in the House of Commons in February 2021. It has only reached the stage of first reading, and like its three previous decedents dating back to 2008, is likely to fall out of the sky in a ball of flames. If you do not succeed at first, try, try, and try again!
If enacted, what would TSWLA do? Probably nothing. If it became law, the act would require a product, including food, to include on its label a warning about the presence of toxic substances. A description related to the risk of the toxic substance based on consumption, as well as a symbol identifying the nature of the hazard, will be included.
Warning labels are not new to foods. Food in pressurized containers bear warnings and hazard symbols, and for good reason. The container may explode if mistreated and the contents may be flammable. This may be obvious when propane and/or butane are used as pressurizing agents. Less obvious involve foods, with limited exceptions, containing hydrolyzed or partially hydrolyzed casein, gelatin or collagen, which require the label warning: “CAUTION, DO NOT USE AS SOLE SOURCE OF NUTRITION.”
Cautionary labelling comes in many forms. The voluntary inclusion of a “may contain” food allergen statement points out the food may contain the named allergen because of an inadvertent cross contact. Foods containing aspartame are required to disclose they contain phenylalanine, which is a safe amino acid for most individuals, but the intake of phenylalanine needs to be controlled by people with the metabolic disorder Phenylketonuria. These types of labels are known as implied warnings.
The current food labelling warnings differentiate themselves in that they do not imply the food is unsafe, at least when consumed and used under appropriate conditions. Labelling foods under TSWLA would imply they are unsafe. At one point in its pre-reincarnated form, it had been identified as, “an act regarding the right to know when products contain toxic substances.” So, is it a “right to know” or “warning”? In toxicology 101, it is learned the effects of a toxic substance is dose-dependent—it must present in sufficient quantity for it to demonstrate toxicity. The levels vary depending on the substance and the nature of the toxicant (e.g. cancer-causing and neurotoxin). The mechanism of exposure (i.e. inhaled or ingested) is an important influence. The level alone in one food versus another needs to be evaluated on a case-by-case basis, as their consumption pattern may differ. Would you feel safe consuming a small amount of food with a toxicant at a higher level or a food in higher amounts with a toxicant at a lower level?
A good answer would be a food where the dietary intake of a substance is below an amount where it has adverse health effects. It may also depend on the age, with infants being particularly sensitive. The best answer, of course, is a food with no toxicants, but that also has the adverse effect of death by starvation.
The TSWLA is somewhat akin to California’s Prop 65 (Safe Drinking Water and Toxic Enforcement Act of 1986). Through the act, Californians have gained the right to know foods contain certain toxicants at low levels where they pose no hazard. These substances end up in foods largely due to environmental exposure (e.g. lead) or are created during food production (e.g. acrylamide). TSWLA would also target similar toxins including acrylamide, lead, nitrites, mercury and safrole. Unlike California’s law, TSWLA does not provide safe harbour levels. There is a presumption any level would warrant a “warning.” Health Canada, in collaboration with the Canadian Food Inspection Agency, monitors the level of toxicants in food and our dietary exposure to them. They also prohibit the presence of certain adulterants and set maximum residue levels for others. Therefore, foods should be “safe.” For example, Health Canada has set maximum mercury limits for fish, but also recommends limiting the weekly or monthly consumption of certain species including but not limited to tuna, swordfish, marlin and orange roughy. The consumption limits are population-dependant, with very young children and pregnant women being of greatest concern. As with other warnings, these fish are safe to consume under the right conditions.
The premise of TSWLA is unsound. The cost of implementing, maintaining and enforcing the legislation is unwarranted. The danger of the proposed legislation is that it would not inform consumers in any meaningful way. The warnings required would misrepresent the safety of food and cause needless anxiety among consumers. The sad news is this bill is occupying time in Parliament when the government is up to their eyeballs with COVID-19 relief efforts, and regulators are struggling to manage existing food compliance. The good news is private member bills rarely ever get enacted. This bill gets two thumbs down.
Gary Gnirss is a partner and president of Legal Suites, Inc., specializing in regulatory software and services. Contact him at firstname.lastname@example.org.
This article was originally published in the May 2021 issue of Food in Canada.