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From February 7, 2006                                                                                                        

Federal Food Label Bill Will Preempt California’s Prop 65
(Beyond Pesticides, February 7, 2006) A bill recently passed by the House Energy and Commerce Committee regarding the labeling of food will undermine California’s Proposition 65 rules. Lawmakers in California’s Central Valley have become allies with the Grocery Manufacturers Association (GMA) by supporting H.R. 4167, the National Uniformity for Food Act, a move that pits them against California’s attorney general and would preempt one of the strictest state food labeling laws.

According to the Public Interest Research Group (PIRG), H.R. 4167 could preempt approximately 80 state laws that are already on the books in 37 states. The bill will impact the strict laws in states such as California, Florida, Louisiana and Rhode Island that require warning labels on shellfish, which often carry lethal pathogens, laws in Illinois and Pennsylvania that regulate the safety of eggs; a law in Alaska requiring labeling of genetically modified fish or fish products; and state mercury warnings, such as California's strong point-of-purchase mercury warnings for fish.

In addition to preempting the already established food safety laws, according to PIRG, H.R. 4167 will forever tie the hands of states and municipalities on a range of emerging food safety issues, whether or not the federal government has addressed public health concerns. Among other things, states and localities would not be able to regulate and label food products that contain irradiated ingredients, pesticides, antibiotics, or genetically modified organisms.

Devin Nunes (R-CA) said, "The bottom line is, you have to have continuity in food labeling, because you never know when the food is going to go across state lines.” Agreeing with the concerns expressed by California environmental groups, California Attorney General Bill Lockyer warns the legislation would dismantle the state's own strict standards, which includes the Proposition 65 rules that have been in place since 1986.

Mr. Lockyer advised California lawmakers last year that "Federal pre-emption of this law and similar state requirements is bad federalism, bad science and bad public policy." His office is currently attempting to force McDonald's, Burger King and other potato chip and french fry manufacturers to post warning notices over the chemical acrylamide. A Los Angeles Superior Court judge is scheduled to hold the latest hearing in the ongoing lawsuit this week.

Mr. Lockyer’s office is also demanding that Bumble Bee seafoods and other canned tuna producers post labels warning of mercury. So far there has been no ruling on that case. Both of these state actions will evaporate under the bill backed by Nunes and others, unless federal officials gave the state approval. The House Energy and Commerce Committee panel members, including Rep. George Radanovich (R-CA), easily approved the National Uniformity for Food Act in December 2005 by a 30-18 margin. After a three-year waiting period, the legislation will not permit states to "establish or continue in effect" food safety warning rules that differ from nationwide Food and Drug Administration (FDA) rules. This legislation will strip the unique California rules that now require Proposition 65 warning labels on foods containing any of the roughly 750 chemicals known to cause cancer or birth defects.

The legislation will block a myriad of other state rules, such as Alaska's requirement that farm-raised salmon be specially labeled, Iowa's limits on the use of the word "honey" and New Hampshire's requirement that "maple syrup" be made solely from the sap of a maple tree.

States could petition the FDA for an exemption, if federal regulators concluded among other things that the tougher state rules "would not unduly burden interstate commerce." However a move such as that could become one avenue of attack for groups like the Grocery Manufacturers Association, which seeks uniform national standards on behalf of members that include E&J Gallo Winery, Del Monte Foods and Blue Diamond Growers.

Mr. Radanovich maintains that national standards are needed to prevent states from adopting unnecessary labels governing genetically engineered foods. Whether the National Uniformity for Food Act can survive for long outside the House remains to be an open question. Bills carrying the same name have been introduced consistently since 1998, and none have come close to reaching the White House. Senator Dianne Feinstein (D-CA) has inserted herself as a political obstacle, urging her congressional colleagues in a letter not to support the uniform labeling proposal.

Contact members of Congress on this matter to express your views.

On a related preemption issue, states and municipalities are fighting to overturn preemption laws and return the power back to localities, as pesticide pollution and concerns over human and environmental health mount. If you would like to work with Beyond Pesticides on preemption of local authority, please contact the organization at info@beyondpesticides.org.