Arsenic Suit Seeks To Pit Arkansas Chicken and Rice Sectors Against Each Another

A lawsuit seeks to pit Arkansas’ iconic rice industry against its iconic chicken industry, freighting what had been a happy pairing in Arkansas agriculture with the fear of “devastating” financial losses.

The furor stems from a Consumer Reports article released Sept. 19 on arsenic contamination in rice that renewed concerns about the element in chickens and prompted a cascade of controversy. That article was followed soon after by the release of preliminary data on arsenic in rice by the U.S. Food & Drug Administration, which announced plans for further study.

Among the ensuing developments:

• A lawsuit by four Arkansas rice farmers alleging the use of poultry litter as fertilizer had contaminated their rice crops with inorganic arsenic, a cancer-causing agent;

• A temporary suspension by South Korea of U.S. rice imports;

• Calls by congressmen for more information and introduction of a bill to address the issue; and

• An investigation by University of Arkansas scientists.

The state is home to a $3.6 billion poultry industry and a $1.2 billion rice sector. Arkansas is the top rice-producing state, producing about 47 percent of rice grown in the U.S. So the question of whether litter, or waste, from the state’s largest livestock sector is tainting the state’s largest crop, as the farmers’ lawsuit alleges, hits home hard.

Uncertainty, however, clouds the case because arsenic is a naturally occurring element, found in soil and water and other situations that have nothing to do with chicken waste. The issue then becomes how much arsenic is too much and what is its source.

In addition, the Arkansas Rice Federation, a trade group representing the rice industry in Arkansas, has made clear that it’s not a party to the rice farmers’ lawsuit and doesn’t support it. The Arkansas Poultry Federation, meanwhile, denies the suit’s claims and calls it “irresponsible.”

A History of Concern

In its Sept. 19 statement, the FDA said: “Based on the currently available data and scientific literature the FDA does not have an adequate scientific basis to recommend changes by consumers regarding their consumption of rice and rice products.”

However, concerns over arsenic in chicken — and in the waste chickens produce — are nothing new. The poultry industry for years treated chickens with arsenic to help control coccidiosis, a disease striking the birds’ intestinal tract. Arsenic-containing drugs have also been used for weight gain and to enhance the pink color of chicken flesh.

Arsenic is found in two forms: organic and inorganic. Organic arsenic is not considered carcinogenic; the inorganic form is more toxic and is considered a human carcinogen.

In 1944, the FDA approved the first arsenic-containing animal drug, 3-Nitro (also known as Roxarsone), whose active ingredient was organic arsenic. The drug was used primarily in broiler chickens. At the time 3-Nitro was approved, scientists thought that animals treated with the drug would excrete it in the form in which they took it in: the less harmful organic arsenic.

However, scientists eventually discovered that organic arsenic could break down into the cancer-causing inorganic arsenic when metabolized by chickens and on exposure to the elements after excretion.

The FDA then performed a study that found that the levels of inorganic arsenic in the livers of chickens treated with 3-Nitro (Roxarsone) were higher than those that didn’t receive the drug.

In June 2011, the agency announced that Alpharma, a subsidiary of the drug-making giant Pfizer Inc., was voluntarily halting sales of 3-Nitro.

On Sept. 19, Consumer Reports released its findings indicating that many kinds of rice products contain what the nonprofit described as “worrisome” levels of arsenic, in both its organic and inorganic forms.

“White rice grown in Arkansas, Louisiana, Missouri, and Texas generally had higher levels of total arsenic and inorganic arsenic than rice samples from elsewhere (India, Thailand and California combined),” Consumer Reports said.

Currently, no federal limit exists for arsenic in most foods. On the day it released its findings, Consumer Reports called for the federal government to set limits on arsenic in rice.

A few hours later, the FDA released its own sample analysis and said it was collecting and analyzing another 1,000 samples of rice and rice products, a process that would be finished by the end of this year. The agency will then analyze the results and decide whether more recommendations are needed.

News outlets throughout the country gave wide play to the Consumer Reports findings.

Less than a month later, three Arkansas farming operations filed a class-action lawsuit in Arkansas County Circuit Court in Stuttgart alleging that arsenic found in Arkansas rice is caused by farmers’ use of chicken litter as fertilizer. The suit named Pfizer and Alpharma as defendants. But it also named some of the biggest poultry companies in Arkansas — Tyson Foods Inc. and George’s Farms Inc., both of Springdale, Simmons Foods Inc. of Siloam Springs and Peterson Farms Inc. of Decatur — as well as Pilgrim’s Pride Corp. of Greeley, Colo.

The suit, filed by the Alabama-based firm of Hare Wynn Newell & Newton LLP, alleges that the defendants “knew that excessive arsenic in chicken litter used as fertilizer on many rice farms in Arkansas would contaminate the entire U.S. rice crop and infiltrate the general U.S. rice supply … .” It adds that publicity about the contamination “would result in devastating financial losses to U.S. and Arkansas rice producers.”

Hare Wynn represented 2,500 rice farmers, including a number in Arkansas, in a case that last year ended in a $750 million settlement with Bayer AG over contamination of the U.S. rice supply by Bayer’s genetically modified rice.

Asked last week what damages his clients in the arsenic case had suffered, Hare Wynn lawyer Scott Powell of Birmingham, Ala., cited the move by South Korea to stop importing American Rice. “Arkansas accounts for 50 percent of all of the U.S. exports, so by virtue of that there has been an adverse economic and market impact to the price,” he said.

In addition, Powell said, remediation of his clients’ contaminated rice fields is expensive, costing as much as $500 an acre.

Not So Fast

At the time of the suit’s filing, Tyson spokesman Gary Mickelson told Arkansas Business that the suit “appears to be an example of creative lawyers trying to use frivolous litigation to extract money from companies that have done nothing wrong. We will vigorously defend ourselves. None of our chickens are given feed additives containing arsenic.”

In a response last week to emailed questions, Tyson elaborated: “We are confident in the safety of our products. Tyson and USDA food safety personnel regularly conduct testing to confirm the safety of chicken products.

“Tyson does not test litter produced by contract growers. Tyson does not own or operate the farms on which chicken litter is produced and is not involved in the use or sale of chicken litter as fertilizer. However, the use of chicken litter as a fertilizer is a practice that has been approved by state and federal agencies for many years under very detailed regulations. The regulations vary across states but most regulations require certain testing of poultry litter to confirm that it can be safely used as fertilizer.”

The rice farmers claim in their suit that poultry producers like Tyson completely control “every stage of poultry production” and are responsible for additives fed to chickens.

And though rice farmers are the suit’s plaintiffs, the Arkansas Rice Federation has no use for the complaint, saying: “We were not involved in the filing nor do we support this lawsuit. Arsenic is naturally occurring and we are currently working with the U.S. Food and Drug Administration (FDA) to best determine the next steps on addressing this issue. FDA has repeatedly stated rice is safe to eat and should continue to be part of a balanced diet.”??©The federation said it had received no complaints from Arkansas rice producers about potential arsenic contamination of rice crops by poultry litter. And asked whether the Consumer Reports report had affected rice prices, the trade group said it was too early to tell.

As for South Korea, on Oct. 12 it lifted its Sept. 21 suspension of U.S. rice imports after that country’s agriculture ministry said tests showed consumption of the rice posed no significant risk.

Congress Enters the Picture

In the aftermath of publicity about Consumer Reports’ findings, U.S. Reps. Henry Waxman, D-Calif., and Diana DeGette, D-Colo., sent letters asking eight companies that sell rice and rice products for documents regarding the levels of arsenic in rice and the companies’ monitoring efforts.

In a separate move, U.S. Reps. Rosa DeLauro, D-Ct., Frank Pallone, D-N.J., and Nita Lowey, D-N.Y., introduced a bill to limit the amount of arsenic allowed in rice and rice-based products.

Cash Receipts from Arkansas Farm Marketing:
Top five commodities, 2010

CommodityValue of Ark. Receipts for Commodity*Percent of Ark. Total Cash Receipts
Broilers $2,861,875 37%
Rice $1,231,118 16%
Soybeans $1,174,664 15%
Cattle and Calves $614,249 8%
Cotton $425,631 6%

*Values in thousands of dollars

The Question of Sources

Marvin Childers, president of the Arkansas Poultry Federation, had harsh criticism for the class-action lawsuit filed on behalf of rice producers John Alter and Kenneth Graves, both of Arkansas County, and Mark and Joyce Hargrove of DeWitt. Childers expressed doubt that poultry litter could be conclusively linked to arsenic in rice.

“I haven’t seen any evidence that rice grown in Arkansas is contaminated with high levels of arsenic from any source,” he said. “However, if rice grown in Arkansas were confirmed to have high levels of arsenic, it’s my opinion that there are much more plausible explanations for that other than poultry litter.

“Soils and groundwater naturally contain arsenic, as do many products regularly used in the farming practices in east Arkansas. Commercially produced phosphate fertilizers are known to contain trace amounts of arsenic, as do various herbicides and pesticides.

“And to suggest that arsenic from poultry litter has contaminated the rice crops in Arkansas without evaluating the role of naturally occurring arsenic or commercial fertilizers or herbicides and pesticides is just irresponsible.”

For his part, plaintiffs’ attorney Powell said he didn’t think the arsenic contamination of his clients’ fields could be traced to anything other than chicken litter.

The whole issue of arsenic “is particularly troubling for rice farming in Arkansas and everywhere else, coming on the heels of the GMO contamination,” Powell said. “They’re trying to work themselves out of that mess.”