SINISTER SWEETS

In a strongly worded July 1 statement titled “Corporate greed wins over children's health in Sacramento,” the San Diego-based Environmental Health Coalition (EHC), expressed shock and outrage over the failure of AB 2297, a bill co-sponsored by the nonprofit and Assemblymember Juan Vargas and designed to expand the Childhood Lead Poisoning Prevention Act of 1991.

After a promising run through the state Assembly this year, the bill was effectively killed when, on June 23, it garnered only six of the seven required votes from the 13-member Senate Health Committee that would have moved it forward to the Senate floor and, EHC had hoped, to the governor for approval.

EHC stated that AB 2297's purpose was “to require the Department of Health Services [DHS] to regulate the lead content of candy and to establish a standard for taking action if candy was contaminated with lead.” EHC cited data indicating that during the past 10 years, more than 112 brands of tested candy, most of them produced in Mexico, manifested “dangerous levels of lead.” Such candies predominantly end up on store shelves in Latin American and Mexican communities.

EHC also pointed to a two-year investigation conducted by the Orange County Register, which revealed that up to “15 percent of lead-poisoned children in the state have eaten leaded candy-about 1,000 children a year.... Statewide 75 percent of lead-poisonings are Latino children.”

Noting that the Senate Health Committee had included several members of the Latino Caucus, as well as environmental-justice leaders, Leticia Ayala, director of EHC's Campaign to Eliminate Childhood Lead Poisoning, told CityBeat, “They're awesome leaders. It's just really bizarre how [the bill's failure] happened, because we know they... believe this is an issue that has to be resolved.”

Sen. Sheila Kuehl, a Democrat from Santa Monica and one of five committee members who did not cast a vote on the bill, said that Vargas' original proposal, before it reached the committee, focused solely on imported candy, particularly products made with chilies and/or tamarind-ingredients that evidence has shown possess a greater potential for bonding with lead in Mexican soil, thereby raising the lead content of candies imported from Mexico.

However, before the bill reached the committee, Vargas was advised that the North American Free Trade Agreement (NAFTA) precludes singling out a foreign import for different treatment than that afforded to domestic products. By the time of the committee hearing, Vargas had incorporated amendments that, in Kuehl's opinion, changed AB 2297 from a bill that dealt exclusively with imported candy to one that would require every kind of candy in California to be tested for lead content.

Kuehl noted that the amended bill still gave priority to candies containing chili or tamarind. “He thought that rescued the bill from requiring the testing of all candy,” she said. “But as I read the bill, it did not because the primary clause in the bill said that the DHS had to test candy and the word ‘imported' had been struck in every part of the bill.”

Required testing of all the candy in California, imported or local, Kuehl concluded, would have exponentially increased the bill's costs, placing an unnecessary burden on the financial source for such testing: the so-called “Sinclair Paint money,” a levy imposed on all paint sold in California that helps fund childhood lead poisoning prevention and treatment programs.

“I would have voted for the bill if it was limited to candies that had chilies and tamarind in them because that was where we had some scientific evidence that there had been lead-bonding and, therefore, an issue,” Kuehl said.

In its written reaction to the bill's demise, EHC said the list of lobbyists that vigorously opposed AB 2297 includes the Grocery Manufacturers of America (GMA), the California Paint Council, Kraft Foods, Hershey Food Corp. and the California Manufacturers and Technology Association. Also opposing the bill was a coalition of Mexican candy manufacturers, which suggested AB 2297 presented issues of trade discrimination.

In response to EHC's allegation of “a shameful display of the triumph of Big Food, Big Oil, Big Tobacco and Big Corporate Interests over protecting children's health,” Kuehl said, “Well, I would say that [EHC's] press release is the triumph of big bullshit over reason. That has nothing to do with what happened. I know they're disappointed, but it was a tactical error to amend the bill to say that it covered all candy. I don't care about big business. I'm about protecting consumers.”

Nonetheless, a copy the official Republican Caucus position on AB 2297 provided in lieu of a direct comment by Sen. Jim Battin, a Republican from La Quinta and one of two committee members who voted against the bill, reads, in part, that “establishing a program to regulate imported candy and funding the program using fees collected from paint manufacturers is beyond the scope for which the funds were established. Additionally, the [GMA] believes recent actions undertaken by the U.S. Food and Drug Administration to alert manufacturers, importers, distributors and consumers of imported candy are a more effective and efficient way to identify and remove adulterated candy from distribution.”

Countered Ayala: “All I can tell you is that the lobbyists were very strong. What is it that they have to lose? What makes them so fearful of this bill?”

Ayala added that another bone of contention for the EHC was that once AB 2297 failed to secure the votes needed from the Senate Health Committee, Vargas, as the bill's author, could have requested a reconsideration process, but did not.

“This was a window of opportunity to make [the bill] come back,” Ayala said. “Who's to say maybe it could've passed after all the confusion would have been cleared up.... We are very disappointed that [Vargas] didn't take it to reconsideration.”

Although repeated attempts to reach Vargas for comment proved unsuccessful, Victoria Harris, a legislative assistant for Vargas who worked on the bill, confirmed that time considerations had factored into the decision not to pursue reconsideration at this time, and that Vargas would introduce a new leaded-candy bill next year.

With AB 2297 now dead in the water, EHC plans to focus its efforts on seeking a remedy to the leaded-candy issue through Proposition 65, a law requiring the public to be notified about chemicals known to cause cancer and birth defects. Following a review of the evidence detailed in a document EHC filed last month, the state Attorney General's office, on July 9 in Los Angeles, filed a Prop. 65 lawsuit, which names specific companies that manufacture candies containing a high lead content.

Although Prop. 65 only mandates warning labels, one hope is that, because this case deals with food products, the lawsuit will compel named candy manufacturers to avoid the warning requirement by reformulating their products. The action could also lead to a certification program to ensure the safety of those products.

Ayala said EHC is also spearheading an effort to get parts of AB 2297 reincorporated into another bill before the end of the legislative session, working with Assemblymember John Longville, a Democrat from Rialto who has a bill that could be “gutted and amended” and turned into a leaded-candy bill.

EHC is “not against the Mexican or any candy manufacturers,” Ayala asserted. “We're against the lead that's in either the wrapper or the candy manufacturing process. That needs to change... They know where we stand. It's simple: They can continue to profit, but not at the expense of children's health.”