Mariah Walters Orose, Brian Ronholm of Consumer Reports, and Tom Neltner
What Happened
Recently, Unleaded Kids and Consumer Reports evaluated the best baby food companies that are making publicly available test results arsenic, cadmium, lead and in their products, as required by a California law that went into effect last year. The results of our evaluation were reported in this Consumer Reports article.
Our evaluation gave high marks to the brands that provided straightforward access to the test results by making them publicly available on their websites without requiring a purchase. Conversely, we gave low scores to those companies that we felt used a very narrow definition of “publicly available” by requiring consumers to track down additional information, including lot numbers, UPCs and best-by dates.
In an attempt to remedy this, we sent a letter on August 13 to the California Department of Public Health (CDPH) and the state Attorney General asking them to clarify the definition of “publicly available” and to determine whether eight baby food brands are meeting that criteria. Our contention is that, if users are only permitted to see the data by finding and entering in lot numbers, UPCs and best-by dates, it would not meet the “publicly available” threshold. Our letter also asked CDPH to update its FAQ to clarify and explain the requirement.
Our main concern is that requiring the additional information forces consumers to either purchase the product or find it in a store and precisely enter the information to get the test results for each and every item they are considering. The most troublesome approach is one used by Beech-Nut, which requires entry of three sets of numbers (up to 28 digits), and then the completion of a CAPTCHA for each lot and each product. Also concerning is Little Spoon, an online-only baby food provider, that claims “Our commitment is the first of its kind — earning your trust with the greatest level of transparency in the U.S.” Consumers will know the lot code to enter only after the product is delivered.
On August 28, the Food and Drug Branch of CDPH responded saying:
“CDPH appreciates the importance of providing information that is easily understandable so the public can make educated and informed decisions.
“The Department notes toxic element testing results are available to the public and meet the requirements pursuant to Chapter 668, Statutes of 2023 (AB 899) provisions. The statute outlines the data retrieval limits.”
We interpreted CDPH’s response to mean that forcing a consumer to enter a lot code to access the test results meets the criteria for what is “publicly available” under the law and, as a result, the FAQ is unchanged.
Our Take
We strongly disagree with CDPH’s apparent interpretation of “publicly available.” Consumers should be able to compare lots, products, and brands without having to buy a product or find it in a store and enter lot codes on their phone to see the results. The companies that require lot codes or other additional information are creating unnecessary barriers to accessing results, and CDPH appears to be providing approval of these barriers.
Recent activity in the California legislature suggests that the lawmakers share this view. On September 13, the legislature unanimously passed a bill modeled after AB-899. The bill, SB-646, requires testing and disclosure of arsenic, cadmium, lead, and mercury testing results for prenatal multivitamins, and that the results “shall be available to the public without having to provide a UPC number, a lot number, or a proof of purchase.”
We encourage CDPH to reconsider its interpretation of what constitutes publicly available in light of SB-646.