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Texas Attorney General Ken Paxton is investigating major grocery chains over allegations that they are misting organic fruits and vegetables with an antimicrobial pesticide without informing consumers.
Paxton said the practice may violate federal organic food standards and consumer expectations.
“Many Texans choose organic produce specifically to avoid harmful pesticides,” Paxton said in the press release. “It’s not only wrong for grocers to mislead consumers about chemicals being sprayed on their food — it may very well be illegal. There should be no shortcuts when it comes to food safety.”
The probe, announced Monday, centers on the use of Produce Maxx, an antimicrobial pesticide product registered with the U.S. Environmental Protection Agency. The product contains hypochlorous acid, a form of chlorine.
Unlike insecticides or herbicides, antimicrobial pesticides target bacteria, viruses, fungi and other microorganisms.
Thousands of grocery stores nationwide use the substance to control bacteria and extend shelf life. Most consumers assume certified organic produce has not been treated with any pesticide.
U.S. Department of Agriculture (USDA) regulations require that produce treated with chlorine-based substances be rinsed with potable water before consumption to maintain USDA organic certification. However, many stores that spray Produce Maxx on certified organic products don’t warn consumers of this.
Paxton didn’t name specific grocery chains, but said the investigation will be statewide and aims to protect consumer rights and transparency at the point of sale.
Paxton is demanding that any Texas store that continues to use antimicrobial pesticides on produce must post clear signage indicating that the produce has been sprayed. Signs must include instructions for rinsing before eating — a step his office says is required by federal law and USDA guidelines.
The investigation is the latest in a series of consumer protection and food-related inquiries and lawsuits by the Texas Attorney General’s Office. The office is investigating the makers of fluoride toothpaste, Tylenol and the COVID-19 vaccines.
As of now, no enforcement actions or lawsuits related to Produce Maxx have been announced.
Chemstar, which manufactures Produce Maxx, did not respond to The Defender’s request for comment.
‘Inert ingredients’ not listed on the label make up 99.5% of Produce Maxx
Produce Maxx is a disinfectant, applied to produce on the shelves and to cut and prepare fruit and vegetables.
The use of disinfectant solutions on produce began in the 1990s, after a serious outbreak of Legionnaire’s disease was traced to a grocery store’s produce misting machine, according to A Voice for Choice Advocacy. The outbreak killed two people and sickened another 34.
In response, stores began using systems that produced hypochlorous acid — the active ingredient in Produce Maxx — known for its ability to break down pathogens, to sanitize and disinfect produce.
The USDA maintains a list of approved substances that are legal to use with organics, said Mark Kastel, executive director of the organic industry watchdog organization OrganicEye. “Any synthetic or non-organic ingredients or materials used in organic food production are very carefully scrutinized for safety.”
Kastel said most chemicals used to treat conventional produce post-harvest are illegal to use on organic produce under federal law.
Hypochlorous acid is on the list of substances approved for use on organic products. An EPA-approved labeling change in 2021 added information to the label stating that food treated with Produce Maxx should be rinsed with potable water to meet USDA organic standards.
Critics also raise concerns that Produce Maxx includes 99.5% “inert ingredients” that aren’t listed on the label.
The label also cautions: “Causes moderate eye irritation. Avoid contact with skin, eyes or clothing. Wash thoroughly with soap and water after handling and before eating, drinking, chewing gum, using tobacco or using the toilet.”
The Safety Data Sheet, which must list all ingredients per the California Cleaning Product Right to Know Act of 2017, lists water, hypochlorous acid and inorganic salt.
According to the Code of Federal Regulations labeling requirements, ingredients must be listed only if they are hazardous to humans or the environment.
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However, organic food advocates say this does not provide sufficient assurances for consumers.
“Organic food and farming advocates have been trying, for years, to get the USDA to follow the law requiring that all synthetic compounds in organics be individually scrutinized by the National Organic Standards Board (NOSB) for human health and environmental impacts,” Kastel said.
In the case of Produce Maxx, he said, an EPA grouping of “inert” ingredients, which the agency considers “of minimal concern,” has received blanket approval by the NOSB without any in-depth investigation.
“Congress passed the Organic Foods Production Act, requiring thorough investigation of these pesticide ingredients, because there was an inherent mistrust of the EPA’s judgment and suspicion that it was widely influenced by agrichemical lobbyists and other agriculture industry interests,” Kastel said. He added:
“Some of these unscrutinized compounds are considered possible endocrine disruptors, and others might actually be more toxic than the active ingredients in the pesticides currently approved for use in organic agriculture. Many times, the active ingredients themselves are botanically based, and they are being scrutinized by the NOSB.”
Organic experts said the current practice of designating these inert ingredients as minimally concerning — which the NOSB is poised to do again today — is grossly inadequate to protect the public.
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