“Warning: Grilled Chicken at this Restaurant Can Cause Cancer.” Similar warnings for items such as cigarettes are commonplace throughout today’s society; however, thanks to the Supreme Court of California’s recent denial of a petition for review, soon these types of warnings could be required in restaurants located in California (and potentially other states) that serve grilled chicken.
   
On October 27, 2010, California’s high court denied a petition for review of a court of appeals decision reinstating an action seeking an order requiring six popular chain restaurants to warn customers at their restaurants located in California that their grilled chicken may contain a chemical which is known to cause cancer. The suit was first brought in 1998 by a medical non-profit, Physicians’ Committee for Responsible Medicine (“Physicians”), after Physicians allegedly had independent testing conducted on 100 grilled chicken samples from the chain restaurants that found PhIP to be pervasive throughout the samples. PhIP has been indentified as carcinogenic by the National Institutes of Health, International Agency for Research on Cancer, and the State of California. Physicians alleged that PhIP is created on the grilled chicken through the cooking process used by the restaurant chains.
   
Physicians brought suit against McDonalds, Chick-fil-A, Applebee’s, Outback Steakhouse, Chili’s, TGI Fridays, and Burger King under California’s Proposition 65, which prohibits “restaurants and other businesses” from exposing individuals to chemicals known to cause cancer without first giving “clear and reasonable warning.” Burger King settled with Physicians and agreed to post warning signs regarding their grilled chicken and PhIP in its California restaurants.  The non-settling restaurant chains moved to prevent Physicians’ claim as federally preempted arguing that requiring such warnings would contradict federal policy implemented in order to ensure the proper cooking of chicken in order to “prevent the spread of foodborne illness.” The trial court granted summary judgment agreeing that federal law prevented Proposition 65 warnings that grilled chicken contains a known carcinogen.

On appeal, the California Court of Appeals reversed the trial court and reinstated Physicians’ claim, holding that the federal Poultry Products Inspection Act did not prevent the warning’s required under California’s Proposition 65, including any specific warning that the grilled chicken at the defendants’ restaurants could contain PhIP. Thus, after the California Supreme Court’s denial of the restaurants petition for review, Physicians’ claim seeking an order requiring the restaurants to warn will move forward.

Now that the case will proceed, the restaurant chains will likely argue that Proposition 65 does not require a warning because the level of PhIP in the grilled chicken is harmless, and requiring a warning for such a minimal risk would do nothing but cause consumers to ignore warnings that pose a more substantial risk. Physicians will likely stick to its position that because the restaurants are aware that their grilled chicken contains a carcinogen, they should share such knowledge with their customers as required by California’s Proposition 65.

Similar lawsuits requesting warnings at restaurants because of health risks associated with the restaurant’s food items have been filed throughout the United States. As science progresses, we learn substantially more about the potential negative consequences from exposure to certain chemicals at low levels. Because of these scientific advances, the courts, the legislatures, and society have to decide what level of risk caused by exposure to chemicals that is unknown to the consumer is acceptable.

For more information on the Physicians’ Committee for Responsible Medicine lawsuit, please contact Keith Berlin or any member of Taft’s environmental practice group.