Bill could eliminate state food warning laws

Jan. 31, 2006
Processors and legislators seek to trump California Proposition 65 and other restrictive state laws.

Legislation is creeping through Congress that could strip states of their right to mandate some health and safety warnings on food packaging that are more stringent than federal standards. California's Proposition 65, which requires the prominent disclosure of chemicals that may cause cancer or birth defects, likely would be annulled if Congress approves the new law.

The food industry has been pressing Congress and the federal government to ban such state laws ever since California voters approved Proposition 65 in 1986. This past summer, California Attorney General Bill Lockyer used that law to sue five food processors and four fast-food chains for failing to warn customers about the dangers of acrylamide, a carcinogen produced when potatoes and other starchy foods are cooked at high temperatures.

While much of the focus is on California, other states have similar laws. Michigan and Connecticut mandate allergen warnings about preservatives such as sulfur dioxide at salad bars and other settings.

The National Uniformity for Food Act would override many such laws. It sailed through the House Energy and Commerce Committee in December, and its sponsors include more than half the members of the House, The Wall Street Journal reported. A Senate version hasn't been introduced. But the issue has set off a debate involving the food industry, consumer activists, state food-safety officials and Congress.

California's Proposition 65, which requires the prominent disclosure of chemicals that may cause cancer or birth defects (and thus has led to posting of notices like the one above warning of high mercury levels in certain fish), likely would be annulled if Congress approves the new law.

Under the proposed legislation, many state and local laws would be annulled unless states obtain FDA approval to keep them. Food regulation largely has been a federal responsibility, with the FDA and USDA setting national policy on nutrition and health claim labeling, as well as on food safety. “Two landmark 1906 federal laws — the Food and Drug Act and the Meat Inspection Act — granted the federal government the power to conduct sanitary inspections in meat-packing plants and regulate adulterated foods and the use of poisonous preservatives and dyes in foods,” the Journal reported. “States can, however, make their own laws, especially in areas where the federal government hasn't acted.”

And that’s what they’ve done, especially over the past decade or two as Americans became increasingly aware of food-related health problems that weren’t being addressed by the federal government. While the federal bill seeks to invalidate state laws that are not in line with national intentions, it also allows states to keep their safety standards if the FDA fails to take a position on a safety issue.

“States could appeal to the FDA to keep their laws, but such exemptions would be granted only under three conditions,” the Journal wrote. “States must demonstrate their law would cover an otherwise unprotected ‘important’ interest, and wouldn't ‘unduly burden interstate commerce,’ or ‘cause any food to be in violation of any applicable requirement or prohibition under federal law.’ "

“The markup of this legislation by the House Energy and Commerce Committee marks an important step forward in providing uniform, national standards and warning requirements for foods,” says Hunt Shipman, executive vice president of government affairs and communications for the Food Products Assn., Washington. “Consumers in all states deserve consistent, science-based standards governing warning requirements associated with labeling, advertising and other forms of communication by food companies. H.R. 4167 creates a uniform, national system that not only recognizes the role of state and local governments in the regulation of food products, but also integrates them into a national system.”

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