Kellogg's Foods Worse Than Smoking

With the same chemical found in dyes, herbicides, and tobacco



Snacking doesn't need to be considered a sin anymore. Snacks can be delicious and healthy. That is, unless you're eating Kellogg's Austin Toasty Peanut Butter sandwich wafers.

California Attorney General (AG) Xavier Becerra, a little known but important branch of the AG called the Office of Environmental Health Hazard Assessment (OEHHA), San Diego Superior Court Judge Richard Whitney, and California consumers who purchased Austin Peanut Butter cracker products are all in peril of being scammed by a settlement-shopping scheme. As proposed in court, it will actually legalize poisoning consumers who purchase the company’s Austin products.

Published, peer-reviewed studies associate regular consumption of chemically contaminated foods such as the peanut butter sandwich crackers with invasive ovarian and uterine cancer in women and multiple myeloma in non-smoking men.

Using independent testing by Chemical Toxin Working Group (CTWG), a nonprofit advocacy group, the products were found to be contaminated by a cancer-causing industrial pollutant called acrylamide with levels that were so high they violated the state's health and safety laws including the California Safe Drinking Water and Toxic Enforcement Act, also known as Proposition 65 or Prop. 65.

The levels of the cancer-causing chemical in Kellogg's products were as much as 91 times greater than the state of California’s law allows, according to an independent toxicologist who reviewed the test results for the CTWG.

The proposed consent judgement at the heart of the settlement-shopping scheme must be reviewed and approved by Judge Richard S. Whitney of Superior Court of San Diego. The proposed consent judgement, however, isn’t between CTWG and Kellogg's (for which a court case is in process in Superior Court in Alameda County). Instead, the San Diego case is between an attorney known as a legal poacher to the state of California and an obscure individual named Bradley Van Patten and involves a sweetheart deal that betrays California law.

Cancer Problem

Acrylamide is an industrial chemical found in dyes, herbicides, and tobacco smoke. Scientists have only known that processing and manufacturing methods cause acrylamide’s presence in foods since 2002 when it was discovered by Swedish researchers. After fewer than two decades of awareness of its presence in foods, a pattern of women’s cancers has begun emerging that is creating concern in the public health community.

In 2007, The Netherlands Cohort Study on Diet and Cancer, published in Cancer Epidemiology Biomarkers & Prevention and relying on medical histories of 62,573 women, aged 55-69 years, was the first to find the association.

Women who ate the highest dietary amounts of acrylamide (as found in the Austin products tested) compared with the lowest acrylamide intake experienced a significant 29% increased risk for endometrial, ovarian, and breast cancer. However, since smoking is a cause of uterine (endometrial) cancer, the researchers also controlled for smoking. When this was done, among women who never smoked, the risk was even greater; among never-smokers, the corresponding risk increased by as much as 99%. The scientists “observed increased risks of postmenopausal endometrial and ovarian cancer with increasing dietary acrylamide intake, particularly among never-smokers.”

Results reported in 2012 in PLoS One found that, after 16.3 years of follow-up, cases of multiple myeloma and follicular lymphoma increased by 14% and 28%, respectively per 10 µg acrylamide/day increment, respectively, among men. For never-smoking men, the risk for multiple myeloma increased by 98%.

Then, in 2010, researchers at Harvard School of Public Health assessed acrylamide intake among 88,672 women in the Nurses’ Health Study using food frequency questionnaires administered every four years.

They found an increased 41-percent risk for endometrial cancer among high acrylamide consumers. They found a significantly increased risk of 58 percent for invasive ovarian cancer.

A June 2015 report in the Archives of Gynecology and Obstetrics used the PubMed database to identify prospective cohort studies on dietary acrylamide intake and endometrial cancer risk published up to June 2014.

Four large prospective cohort studies were identified, which included 453,355 female participants and 2,019 endometrial cancer cases.“High acrylamide intake... was significantly associated with increased risk of endometrial cancer among women who never smoked....”

Citizen Enforcers as Public Defenders

On November 8, 2018, CTWG filed a Notice of Violation (NOV) against Kellogg's for selling contaminated crackers that it alleged exceed standards established by the state’s Safe Drinking Water and Toxic Enforcement Act.

Consumers of Austin Toasty Peanut Butter Sandwich Crackers “would only need to ingest this product as infrequently as 4 servings in a year” to increase their risk for cancer, according to the toxicology report supplied to HealthyLivinG Magazine.

The CTWG, through its NOV and legal counsel, informed Kellogg in-house counsel Kenneth Odza that the company was violating the Safe Drinking Water and Toxic Enforcement Act needed to either lower its levels of the carcinogen or else start warning shoppers in California about the contamination issue. Negotiations commenced that would result in a public-benefit settlement.

This process often takes anywhere from a few months to a year or longer in order to negotiate lower levels of the chemical carcinogen (which are often based on technological advancements and improved manufacturing processes) and to assess a civil penalty based on sales and violations of the law.

The CTWG has worked with many corporations to make their products safer or label them for their hazard.

In many of these cases, the agreement is reached with a pre-litigation settlement. This has many advantages to filing litigation, which the group also has done. Not only must "private settlements" be approved by the attorney general, they also benefit the public by enacting safety levels in a much shorter period of time. If the case is filed as litigation, due to the inability of both parties to reach a settlement on behalf of the public interest, then it can take years before a public benefit is achieve. There is no public relief. The company goes on selling the contaminated product without warning or reformulation, exposing consumers to dangerous amounts of the chemical.

For this reason, private settlements, approved by OEHHA, are considered equally effective and often preferable.

Kellogg's Settlement-Shopping Scheme

With levels as high as 468 parts per billion (ppb), the CTWG proposed a safe harbor level of 125 ppb, which would be a safe amount based on state law, and a civil penalty used to fund OEHHA’s activities. According to the law, each product violation imposed a civil penalty on Kellogg's of up to $2,500 per violation per day; with sales estimated to be in the millions, Kellogg's found itself legally liable for potentially hundreds of thousands of dollars in civil penalties.

Kellogg in-house counsel Odza found his stiffs in a San Diego attorney named George Rikos and his regular partner Brad Van Patten. It is unknown at this time whether Van Patten even really tested Kellogg products since Rikos, his attorney, did not reply to an email HealthyLivinG Magazine sent him. In addition, the CTWG's NOV was clearly posted at the OEHHA website and available to Rikos and his client Van Patten if they had practiced due diligence in their legal research before filing a duplicate NOV.

Odza encouraged Rikos and Van Patten to propose a deal allowing 299 ppb and a paltry $5,000 civil penalty. They carried out their scheme after Rikos filed an NOV much later and after CTWG had already begun negotiations; the two parties conspired to mislead the courts and pretend that there wasn’t another legal proceeding also in process. They did not inform Judge Whitney nor the attorney general who were in the dark until CTWG notified all parties.

“At 299 ppb, Kellogg snack foods will be in gross violation of health and safety standards,” the group’s legal counsel told OEHHA. “The $5,000 penalty is well below what is normal for sales of this amount.” The rest, some $77,000, went to the attorney for “fees.”

HealthyLivinG Magazine has contacted Kellogg and Rikos. Neither party offered direct comment or challenged the accuracy of this report.

“There’s no rule that says the first 60-day notice, or even the first lawsuit, prevents another private enforcer from bringing the same claim,” notes a public official in the AG’s office. But this same official knows this is going to corrupt the law.

According to the source, “It used to be the case that private enforcers didn't poach each other’s notices, but there have been more examples of that happening lately, which is truly unfortunate because it makes the statute and private enforcement look bad.”

The consent judgement is now before Judge Whitney at the same time that Kellogg's faces litigation with CTWG in Superior Court in Alameda County.

The CTWG has noted an amount of 299 ppb is well above an acceptable scientifically based safety standard, and that a $5,000 civil penalty is well below what would be typical for such high-volume sales.

Such a settlement denies the public a benefit and deprives California taxpayers of tens of thousands of dollar in civil penalties that should have been paid as a result of the violations of public safety, the CTWG has informed OEHHA.

CTWG encourages consumers to use their testing results to find much safer products than Austin’s crackers from Kellogg. CTWG notes the company’s snack-food competitors, whose products have also been tested, were much safer with lower levels.

Here are other snack choices compared to Kellogg's with amount of acrylamide provided in parts per billion (ppb). A level of approximatleyu 150 ppb or less is relatively safe.

Austin’s Toasty Peanut Butter Sandwich Crackers: 468.1 ppb

Good Health Salted Peanut Butter Filled Pretzels: 138 ppb

Nabisco Sweet Potato Good Thins: 132.6 ppb

Trader Joe’s Organic Animal Crackers: 107.2 ppb

Unique - Extra Dark "Splits": 103.9 ppb

Pepperidge Farm Golden Butter Cookies: 91.1 ppb

Pepperidge Farm Thin & Crispy Milk Chocolate Chip Cookies: 80.1 ppb

Quinn Deli Rye Style Pretzels: 57.5 ppb

Annie’s Organic Bunny Grahams: ND

Annie’s Organic Bunny Chocolate Grahams: ND

Annie’s Organic Cheddar Bunnies: ND

Annie’s Organic Lemon Drop Cookie Bites: ND

Quinn Classic Sea Salt Touch of Pretzels: ND

Annie’s Organic Chocolate Chip Cookie Bites: ND

Trader Joe’s Cinaamon Schoolbook Cookies: ND

Trader Joe’s Crispy Crunchy Chocolate Chip Cookies: ND

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