Food Fight Over States' Rights

State laws that require warnings on foods and dietary supplements or regulate the handling of eggs and other products could be nullified under legislation supported by food manufacturers now making its way through Congress.

A top industry priority for years, the legislation was approved on a voice vote by the Senate Agriculture Committee without a hearing and with little advance notice in June. It has at least 35 sponsors, including Senate Democratic Leader Tom Daschle of South Dakota.

Supporters now are looking for must-pass legislation to which they can attach the food proposal. They do not rule out trying to put it on an agricultural appropriations bill pending on the Senate floor.

"If a product needs a warning label then it shouldn't just be in one state, it should be in all 50 states...We're one country, we're not 50 countries," said Susan Stout, vice president for public affairs of the Grocery Manufacturers of America.

For many years the food industry has been trying to avoid a California law, known as Proposition 65, that requires a warning label on all products that contain cancer-causing agents or substances that are toxic to the reproductive system.

Manufacturers usually avoid negative publicity from a warning label by simply removing or changing products. Since California is a large market, whatever companies do there they tend to do regionally.

After the law was imposed, the state used it to force manufacturers to reduce lead levels in calcium supplements. A state panel recently considered requiring a warning on processed meat products that contain sodium nitrite but decided it was not necessary.

The law "has been very good at catching loopholes in federal protection and the feds have often responded by tightening their own standards once California showed the way," said David Roe, a lawyer who helped craft the California law.

The Senate bill, known as the National Uniformity for Food Act of 2000, would bar states from imposing labeling and food safety standards that are tougher than the Food and Drug Administration's. States would have to petition the FDA for exemptions from the law.

Opponents of the legislation say it would effectively block state efforts to act in areas where the FDA has been ineffective or to goad the agency to regulate products it has not.

The agency has come under fire recently for not imposing labeling regulations for dietary supplements and "functional foods," products that have added nutritional content, such as vitamin-enhanced juices or soups containing St. John's Wort.

In a July 11 report, the General Accounting Office said consumers may be buying some potentially unsafe products because the FDA has not set a clear safety standard for new ingredients in dietary supplements or issued regulations or guidance for safety-related information on labels.

A consumer advocacy group, the Center for Science in the Public Interest, has compiled a list of las and regulations that could be affected by the Senate bill. In addition to Proposition 65, they include:

• Laws in at least 17 states, including California, Florida, Illinois and Texas, that allow them to set tolerances for food additives that are more stringent than FDA standards.
• Michigan and Wisconsin requirements for warning labels on smoked fish. Many states also require warnings on shellfish.
• Laws in Illinois and Pennsylvania that deem egg products adulterated if they are made in a way that increases the chance of microbial contamination.

The FDA has not taken a position on the Senate bill. The agency is moving forward in regulating and monitoring dietary supplements but is hampered by lack of funding, said Joe Levitt, director of the agency's Center for Food Safety and Applied Nutrition.

"We have been very open ... that the FDA doesn't have the resources at this time to carry out everything that needs to be carried out," he said.

The lead Senate sponsor is Republican Pat Roberts of Kansas. A bill similar to his has been introduced in the House by Rep. Richard Burr, R-N.C.

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