Sometimes clearer heads prevail, but at considerable costs to individual stock portfolios and corporations who have to mount a defense against uninformed, nuisance shareholder resolutions. Last week the Securities and Exchange Commission slowed the progressive roll of religious activist group As You Sow by denying an AYS proxy resolution seeking a detailed nanoparticle risk assessment by Mondelēz International Foodservice.

Mondelēz successfully convinced the SEC that its use of food whitener titanium dioxide (TiO2) in its Dentyne Ice chewing gum does not meet the dimensional criteria of nanoparticles as established by the U.S. Food and Drug Administration. Furthermore, the company hedged its bet by asserting that TiO2 use is “ordinary business, preventing shareholders from requesting information about the risk of these materials,” according to the AYS press release.

AYS’s resolution was predicated on two 2014 studies that concluded all food-grade TiO2 contained “a significant proportion of nanoparticles,” that AYS claims “may also result in greater toxicity for human health and the environment.” Note the qualifier “may,” which sums up the degree of scientific accuracy and disingenuousness throughout the AYS’s fear-mongering release. But there are others:

‘This is a dangerous precedent,’ said Danielle Fugere, President of As You Sow. ‘The SEC failed to recognize nanotechnology as a significant policy issue, despite growing public concern about using nanoparticles in foods before it is proven safe.’

‘If Mondelēz was confident in its management of risk and disclosures around nanoparticles, it would have no need to block shareholders from voting on this non-binding proposal,’ said Fugere….

Mounting evidence suggests that some nanoparticles, including titanium dioxide, are toxic in cell cultures and to animals….

This reads more like teenage petulance than sound science. Perhaps Mondelēz knows a little bit more about its business than AYS pseudo-scientists. In a memo to the SEC, the company’s attorney stated last month [Spoiler Alert: Actual science ahead!]:

As discussed in greater detail in the No-Action Request, the Company does not use nanotechnology in the development or engineering of its food products or food packaging. As a result, consistent with the FDA guidance, (1) no food product or food packaging is “engineered [by the Company] to have at least one external dimension … in the nanoscale range (approximately 1 nm to 100 nm)” and (2) no food product or food packaging is “engineered [by the Company] to exhibit properties or phenomena … that are attributable to its dimension(s), even if these dimensions fall outside the nanoscale range, up to one micrometer (1,000 nm).”

The Response Letter cites (and includes as Appendix C) testing data purporting to show that one of the Company’s products, Dentyne Ice Gum, contains titanium particles smaller than 200 nm as a result of the Company’s use of titanium dioxide (which is commonly used for coloring foods and other materials) in this product. However, applying the FDA’s standards, the testing data does not show that Dentyne Ice Gum involves the application of nanotechnology. In fact, (1) the testing data does not show that Dentyne Ice Gum contains any nanoparticles below 100 nm and (2) the Company has not engineered this product to exhibit properties or phenomena attributable to nanoscale dimensions or dimensions outside the nanoscale range, up to one micrometer (1,000 nm). Instead, the Company uses standard, grade titanium dioxide that has been manufactured using conventional methods of manufacturing. And while it is possible that a small fraction of titanium dioxide’s “primary particles” may be less than 100 nm due to conventional production processes, FDA specifically recognized that “conventionally manufactured food substances can sometimes include particles with size distributions that extend into the nanometer range” but confirmed that its guidance on nanomaterials was “not intended to bring into question the regulatory status of such products if they have already been … approved …. ” Therefore, simply because titanium dioxide (which has been approved as a color additive since 1966) “can sometimes include particles with size distributions that extend into the nanometer range,” the Company’s use of this material in one or more of its products is irrelevant as long as the Company does not engineer this material to have at least one external dimension in the nanoscale range or to exhibit properties or phenomena that are attributable to its dimension(s).

Moreover, the Titanium Dioxide Manufacturer’s Association explains that, when titanium dioxide is purposely manufactured as a nanomaterial, it is “engineered to have primary particles less than 100 nm.”Notably, in that case, titanium dioxide does not exhibit the properties for which it is used in gum (i.e., it does not produce a white color and, therefore, would not be used as a colorant in gum). Thus, in any event, the relevant size for considering titanium to be “engineered” or deliberately manipulated to be a nanomaterial (within the meaning of the FDA guidance) is 100 nm. As confirmed by the testing of Dentyne Ice Gum provided by the Proponent, that is not the case with respect to the Company’s use of this material. For these reasons, the Proposal is excludable under Rule 14a-8(i)(5).…

Therefore, in seeking to control which ingredients the Company uses in its products (and, specifically, an ingredient that has been approved for use as a color additive by the FDA for fifty years), the Proposal deals with a matter relating to the Company’s ordinary business operations and is, therefore, excludable under Rule 14a-8(i)(7).

The SEC concurred with Mondelēz, and blocked the AYS proposal. It’s about time someone stood up to their anti-science bullying.

Good Profit

Good Profit

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