By Steven DiJoseph
Today, the House is expected to vote on a bill that will require uniformity on warning labels and set standards that could Ã¢â‚¬Å“gutÃ¢â‚¬Â all current state statutes and regulations relating to food safety, sanitation standards for restaurants, and food-related investigations.
In attempting to create a uniform set of standards, the bill would abruptly end, and quite possibly reverse, many years of progress in states like California that have been in the forefront of efforts to make foods safer, labeling more informative, and disclosure of potentially harmful ingredients mandatory.
The imposition of a standardized set of rules at the federal level might improve food safety in some states that have lagged behind in adopting innovative policies; however, it will probably have precisely the opposite effect on regulations already in place in states that have made a conscious effort to implement higher standards of protection for consumers.
Chief proponents of the bill, the National Uniformity for Food Coalition, whose members include supermarket chains, food manufacturers and trade associations, say that different food regulations in different states confuse consumers. “The citizens of all states deserve the same level of food safety,” the coalition’s Web site says. “Food cannot be safe in one state and unsafe in another.”
The obvious flaw in the argument is that the new regulations will only help consumers in those states with no existing standards or which have antiquated ones. It can only hurt consumers in those states that have fought long and hard to implement safety standards that exceed the ones which will take their place.
As many opponents of the bill see it, the law would create a Ã¢â‚¬Å“lowest common denominatorÃ¢â‚¬Â rather than a gold-standard for food safety.
There is a long list of critics of the proposed legislation, including numerous state agencies such as departments of agriculture, food and drug officials, the National Conference of State Legislatures, the California attorney general and many consumer watchdog organizations.
These opponents of the bill are convinced that it would undo all state regulations, such as food safety investigations and sanitation standards for restaurants. They fear that in situations where no federal standard would exist, the new law would replace comprehensive state regulations with nothing at all.
One state statute that is particularly vulnerable is California’s famous Proposition 65 that was passed in 1986. That law requires consumer notification about contaminants known to cause birth defects or to be carcinogenic. The federal legislation would pre-empt Proposition 65.
To put the effect of the proposed law in perspective, it was CaliforniaÃ¢â‚¬â„¢s Proposition 65 that led to the reduction of arsenic in bottled water and lead in calcium supplements throughout the U.S. It also prompted the FDA to demand more rigorous federal standards over the years, like warnings for pregnant women about high levels of mercury in certain fish.
It was only last August when CaliforniaÃ¢â‚¬â„¢s crusading Attorney General, Bill Lockyer, sued nine fast food chains and potato chip manufactures pursuant to Proposition 65 to have them warn consumers of a potentially dangerous substance (a known carcinogen) in their products.
Lockyer claimed that the law applies to potato chips and fries since they may cause cancer due to the presence of the chemical acrylamide which has been on CaliforniaÃ¢â‚¬â„¢s list of carcinogens since 1990 and has been associated with cancer of reproductive organs in laboratory animals exposed to high levels.
Acrylamide was initially considered an industrial agent and was used both in food packaging and to treat sewage.Ã‚Â The substance was discovered in food in 2002 by Swedish scientists who identified it in starchy foods cooked at high temperatures.
Recent research has supported a connection between fried potatoes and cancer in a study earlier this month suggesting women who ate a lot of French fries as children had an increased risk of developing cancer later in life.
Lockyer claimed that according to proposition 65 (an initiative passed by voters in 1986 to insure proper warnings on dangerous substances) companies including Burger King Corporation, Cape Cod Potato Chips, Inc., Lance, Inc., Frito-Lay, Inc., Ore-Ida frozen potato products, KFC Corporation, McDonaldÃ¢â‚¬â„¢s Corporation, and WendyÃ¢â‚¬â„¢s International, Inc. should be required to place warning labels on their food products alerting consumers to potentially harmful levels of acrylamide.
The food industry expressed its unhappiness concerning the warnings and believes the proposed labels will cause unnecessary alarm and concern among consumers.
The attorney for several of the defendants said: “No one buys a potato to eat it raw. People will think if they make [French fries] on their own they will not have problems.” A spokeswoman for Frito-Lay said the snacks are absolutely safe.
Lockyer argued that after the 2002 acrylamide reports, the products involved in the case were subjected to many tests to establish that they were subject to a proposition 65 warning label.
While the U.S. Food and Drug Administration (FDA) is currently determining the presence of the chemical in food, the California Office of Environmental Health Hazard Assessment has estimated French fries have as much as 125 times the amount of acrylamide for which a warning is required under state law. Consumers of potato chips receive as much as 75 times the level requiring a warning.
LockyerÃ¢â‚¬â„¢s case followed several others that sought to take action against these foods. In 2002 the Committee for Education and Research on Toxics (CERT) filed a private suit against McDonaldÃ¢â‚¬â„¢s and Burger King. Currently it is pending in Los Angeles County Superior Court.
Two additional private suits were filed on August 3, 2005 by Environmental World Watch, Inc. (EWW) and by the Environmental Law Foundation on August 25 against the same companies targeted by Lockyer.
Such pioneering initiatives by dedicated public officials and consumer advocacy groups who be stopped dead in their tracks by the proposed federal legislation. Ironically, it has been these very types of initiatives at the state level that have driven a great deal of the advances in consumer protection with respect to food safety.
Erik D. Olson, senior attorney for the Natural Resources Defense Council, said: “What the bill would do is assure the lowest common denominator of protection. Cheaper food that has poisonous chemicals in it is no bargain. They are being responsible and protecting citizens when the federal government hasn’t done its job.”
Another attorney we spoke with, who is familiar with consumer protection litigation, told us that the new law would Ã¢â‚¬Å“wipe out decades of hard work in many states. It would also pose a severe problem in major cities where comprehensive local health codes and safety regulations, designed to regulate tens of thousands of restaurants and food vendors, would be eliminated, thereby putting millions of consumers at risk almost immediately.Ã¢â‚¬Â
The Association of Food and Drug Officials, which is comprised of state regulators, claims that the billÃ¢â‚¬â„¢s supporters have misinterpreted it and that the law has implications that extend far beyond uniform labeling. The Association argues that under the proposed law, “a state cannot have any law, not just a food law, which is not identical to the federal Food, Drug and Cosmetic Act.”
The National Association of State Departments of Agriculture has also attacked the bill by stating that it “threatens existing food safety programs,” including milk, retail food protection and shellfish sanitation.
There is also disagreement as to the extent by which safety inspections will be affected. The vast majority of those inspections (about 80%) are presently carried out by state and local officials. Supporters of the bill claim it will have no impact on state and local food safety inspections programs since states would be able to apply for exemptions.
According to a spokesperson for the Grocery Manufacturers Association: “The legislation addresses only food safety tolerances and warning label requirements. It does not relate to other state labeling requirements.”
The bill was approved in committee (House Committee on Energy and Commerce) along mostly party lines; however, it has bi-partisan support among its 226 co-sponsors.