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Corporate Food Giants & Congress Threaten States' Rights to Label Food

Food Industry Advances In Labeling Fight
Bill in Congress Would Ban Many State, Local Rules And Set National Regulations
January 9, 2006; Page A4

WASHINGTON -- Some state and local governments require food makers,
restaurants and grocery stores to post warnings about products containing
ingredients regulators deem harmful.

Those laws are often tougher than federal Food and Drug Administration rules
or cover substances not regulated by federal law. California, for example,
requires businesses to disclose the presence of chemicals that the state
believes cause cancer, birth defects or other reproductive harm. Michigan
and Connecticut mandate allergen warnings about preservatives such as sulfur
dioxide at salad bars and other settings.

The food industry has been pressing Congress and the federal government to
ban such state laws ever since California voters approved what is known as
Proposition 65 in 1986. Recently, it has made some progress. A bill that
would override many such laws sailed through the House Energy and Commerce
Committee in December, and its sponsors include more than half the members
of the House. A Senate version hasn't been introduced and it's unclear if
the bill will move soon, but it already has set off a firestorm, pitting the
food industry against consumer activists and state food-safety officials.

Under the proposed legislation, many state and local laws, such as
California's Proposition 65, would be annulled unless states obtain FDA
approval to keep them. Through the FDA and the Agriculture Department, the
federal government sets national policy on nutrition and health-claim
labeling, as well as on food safety and labeling of meat, poultry and egg
products. The proposed federal law would set similar national standards by
stripping states of the right to require safety warnings on food packages or
where food is sold.

Food regulation has been largely a federal responsibility. 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. States can, however, make their own laws,
especially in areas where the federal government hasn't acted. Over the past
few decades, as Americans became increasingly aware of food-related health
problems, state and local governments have passed laws to address regional
needs or cover gaps in federal law. "Sometimes states can act faster," says
Joy Johnson Wilson, health-policy director at the National Conference of
State Legislatures. "We don't believe that should be precluded."

The federal bill would invalidate any food-safety and labeling laws
considered "not identical" to FDA regulations. But how to determine
"identical" -- or "substantially the same," as defined in the bill --
remains a question. The bill says states would be allowed to keep their
safety standard if the FDA fails to take a position, but some state
officials worry that any state regulation could be judged as "not identical"
to the FDA's "zero" regulation -- and then annulled. States could appeal to
the FDA to keep their laws, but such exemptions would be granted only under
three conditions. States must demonstrate that 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."

There is little doubt that the proposed federal legislation would undo
Proposition 65 in California, the state's Democratic Attorney General Bill
Lockyer wrote in a recent letter to the bill's main sponsor, Rep. Mike
Rogers (R., Mich.). In the past 17 years, Mr. Lockyer wrote, the law has
forced "quiet compliance" among businesses, with many voluntarily removing
chemicals that are on California's list -- now totaling 750 -- that would
require labeling.

The effects extend beyond California. While the FDA advises on its Web site
that pregnant women should avoid certain fish with high levels of mercury,
such as swordfish, California requires restaurants and supermarkets to post
that information. In October, supermarket chain Safeway Inc., of Pleasanton,
Calif., said it will place mercury warning posters in stores nationwide.
California also wants mercury-warning labels on canned tuna, but food
companies have gone to court to stop that.

The federal bill has drawn fire from state attorneys general, food-safety
officials and consumer activists. "States want to preserve the right to
protect ... citizens; sometimes our needs are regional and local, and we
want to do it effectively and expeditiously, and this legislation will
prevent that," says Steve Steinhoff, food-safety administrator at the
Wisconsin Department of Agriculture. "The legislation is aimed at
Proposition 65. Unfortunately, rather than fight the battle in California,
we are going to adjust the whole national system."

"What [the industry] really wants is a regulatory vacuum where state and
local governments will be unable to fill the gap left by the FDA," says
Benjamin Cohen, senior staff attorney at the Center for Science in the
Public Interest, a consumer advocacy group in Washington.

Food-industry lobbyists say varying state laws add uncertainty, confusion
and extra costs to interstate commerce. "You could have two different
labels, three different labels, 50 labels depending on inconsistent state
requirements," says Hunt Shipman, executive vice president at the Food
Products Association, a trade group. While almost all companies have chosen
to remove certain chemicals to avoid a warning label in California, he says,
things could get complicated if another state adopts a law as broad as
Proposition 65.

Industry lobbyists and congressional aides who have discussed the subject
during the decade-long push for legislation say the bill would still give
states authority to respond to an imminent hazard, inspect foods and
restaurants and require labeling for freshness dating, religious dietary
issues, organic designation and geographic origin. The proposed federal law
would cover warnings on labels, posters, public notices, advertising, "or
any other means of communication." It would allow states to require
public-service announcements on television or radio and billboards, says
Susan Stout, a vice president at the Grocery Manufacturers Association,
which represents the $680 billion-a-year food and beverage industry.

An FDA spokeswoman says the agency won't comment on pending legislation.

Write to Jane Zhang at