Background

The November 2012 issue of Consumer Reports includes a report on arsenic in rice products that concludes that the levels of inorganic arsenic in rice products, including baby food, are at levels that trigger public health concerns.  Ingestion of inorganic arsenic can result in cancer and other health disorders.  There are federal drinking water standards for arsenic, promulgated by the Environmental Protection Agency, but there are no established limits for arsenic in food products.

The report notes that rice grown in the south central region of the U.S. has particularly high levels of arsenic.  That region has a history of plant pesticides containing arsenic, many of which have now been banned.  In addition, the region still receives large amounts of poultry waste, known as litter, which is used as fertilizer.  The litter includes the feces, old feed, feathers and other matter from poultry concentrated animal feeding operations (CAFOs).  Many CAFOS in this region have a long history of using poultry feed that includes arsenic, which is added to kill intestinal microbes and promote the growth of poultry raised in crowded conditions.

Last summer, the Food and Drug Administration (FDA) did announce a voluntary suspension of one arsenic product widely used in poultry feed – Roxarsone – because of high levels of arsenic found in chicken livers.  The agency, however, has not banned the use of arsenicals in poultry feed.  It is not clear that all poultry integrators have stopped including arsenicals in feed provided by them to contract poultry farmers.  The use of arsenicals in poultry feed is already banned in Canada and the European Union.

State Action

The issue of arsenic in poultry feed as an environmental issue was addressed by Maryland this September when the state enacted the first law banning the use of arsenic in poultry feed as of January 1, 2013.  The ban was prompted primarily by reports showing that arsenic has contaminated both water and soil in the state.

Food & Drug Administration

In response to the findings of Consumers Report, the federal Food & Drug Administration (FDA) has begun a large-scale survey of arsenic in rice products.  The agency does acknowledge that arsenic has been used in poultry feed.  But the agency does not appear to be targeting products with rice from areas of the U.S. where poultry litter from poultry fed arsenicals has been used routinely to fertilize rice crops.  For many of the foods it is sampling, FDA does not even know the origin of the rice in the food products.

Congressional Reaction

On September 21, H.R. 6509, the “Reducing food-based Inorganic and organic Compounds Exposure Act” or “RICE Act” was introduced by Representatives Louise Slaughter (D-CT), Nita Lowey (D-NY) and Frank Pallone (D-NJ).  The bill would require the FDA to set a maximum level of arsenic in rice and food containing rice.  An FDA worldwide survey of rice products may not needed to set a maximum dietary level of arsenic intake given that the Environmental Protection Agency has already set standards for drinking water.

Rice Industry Sues Big Chicken in Arkansas

The Consumer Report findings on arsenic levels in rice products has also prompted a class action lawsuit, Alter v. Pfizer, Inc., filed in an Arkansas circuit court.  Three rice growers are suing Pfizer, the manufacturer of Roxarsone and its Alphafarma subsidiary, as well as poultry integrators Tysons Food Inc., Simmons Foods Inc., Pilgrims’ Pride Corporation, George’s Farms Inc., George’s Processing Inc., Georges Inc. and Peterson Farms Inc.  The vertically integrated chicken processing companies are included because they provide the poultry feed to poultry growers in the region who raise poultry for the companies under contract.  These poultry growers have no choice over which feeds to use.

The lawsuit seeks damages arising from loss of income based on legal theories of negligence, strict liability, intentional failure to warn, and product liability.  In addition to seeking compensatory damages for market loses, the plaintiffs are also seeking punitive damages based on their contention that the poultry companies knew that arsenicals in the feed could ultimately in result in contamination of rice crops.