KFC agrees to Prop. 65 potato warnings in Calif.: BK, Wendy's mull state deals, but not McD

Nation's Restaurant News,  May 7, 2007  by Richard Martin

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SACRAMENTO, CALIF. -- KFC has agreed to post warnings in its California outlets that its fried potatoes and similar items in other companies' restaurants contain a known carcinogen called acrylamide, the office of state Attorney General Edmund G. Brown Jr. disclosed.

Franchisor KFC Corp., an arm of Louisville, Ky.-based Yum! Brands Inc., would include the alert on in-store nutritional posters as part of a settlement of a two-year-old state lawsuit against the chain and eight other food makers, including McDonald's, Burger King and Wendy's. The French-fry sellers and potato chip makers were charged with violating California's so-called Proposition 65 law requiring public warnings about potential risks of cancer or reproductive harm.

KFC also agreed to pay $208,000 in civil penalties and $133,000 to fund Proposition 65 enforcement but would not admit any wrongdoing.

The warning would state that acrylamide "is created in fried and baked potatoes made by all restaurants, by other companies, and even when you bake or fry potatoes at home."

Sources in Brown's office called KFC's agreement a "good template" for other fast-food restaurants, and indicated that settlement talks were under way with Burger King and Wendy's.

In its April 24 statement, Brown's office called acrylamide "a byproduct created by the reaction of chemicals in food and high heat [that] is found in French fries and potato chips at high levels. For example, a serving of fries or potato chips has approximately 82 times more acrylamide than is allowed in drinking water under U.S. [Environmental Protection Agency] standards."

Federal agencies categorize acrylamide, which was not known to be present in food until 2002, as a "cumulative neurotoxin" and a suspected carcinogen. Acrylamide has been listed since 1990 on the Proposition 65 roster of chemicals that require warnings when they occur in products or emissions at levels above certain thresholds.

Eddie Sheldrake, a 15-unit KFC operator based in Anaheim, Calif., called the chain's decision to comply appropriate.

"We sure want to protect the public, our customers, and do whatever's right," he said.

KFC general counsel Matthew Preston was quoted by the Los Angeles Times as calling the agreement a "win-win" and saying that KFC was "doing our part in California."

The settlement, of a complaint filed by former Attorney General Bill Lockyer in 2005, is subject to a judge's ratification at a May 29 hearing in Los Angeles, at which the state Department of Justice and KFC would request court approval.

Deputy Attorney General Edward G. Weil was quoted by the Times as confirming that he was in settlement talks with Burger King and Wendy's. However, McDonald's does not appear to have budged from a position staked out two years ago that the chain is not bound by the state's warning law because of federal precedence in matters involving food contents.

In a statement to Nation's Restaurant News, McDonald's spokesman William Whitman said: "The [U.S. Food and Drug Administration] has not advised people to stop eating baked or fried potatoes. It is our understanding that the KFC settlement explicitly recognizes these facts. McDonald's is not currently in discussions with the California attorney general, but we are currently evaluating the KFC settlement."

Wendy's International spokesman Bob Bertini affirmed that the Dublin, Ohio-based company was "in discussions with the California attorney general's office to resolve the matter." He would not elaborate.

Officials of Miami-based Burger King, which has about 700 restaurants in California, "are in discussion with the California attorney general to try to settle the matter," said BK's vice president of communications, Keva Silversmith.

As for the issue of possible federal pre-emption of Prop. 65, former governor Brown, as California's new attorney general, recently said he would appeal a 2006 state court ruling that tuna canners do not need to put methylmercury warnings on their cans because the chemical was naturally occurring and because federal food regulations trumped Prop. 65.

Despite that disputed issue, about a dozen major casual-dining companies, including Darden Restaurants and Brinker International, recognized Prop. 65's authority in 2005, about six months before the acrylamide suit was filed, when they settled a separate Prop. 65 lawsuit by Lockyer by agreeing to post warnings about the presence of mercury in particular seafood species.

David Kravets, Brown's press secretary, would not comment on McDonald's stance regarding the lawsuit.

"The litigation is ongoing, and whether [the defendants] choose to settle or litigate, this office is committed to the same outcome," Kravets said. "In the end, our main goal is to have Prop. 65 complied with. It's up to them how."

In addition to the chains, the other defendants named in the acrylamide case are Cape Cod Potato Chips Inc./Lance Inc.; Frito-Lay Inc./PepsiCo Inc.; H.J. Heinz Inc.; Kettle Foods Inc.; and Procter & Gamble Distributing Co.