Justices Ease Way for FDA to Raise Food Toxin Limits

The Supreme Court Tuesday reversed a lower-court decision that, in effect, would have required tighter federal controls on certain cancer-causing substances in food.

The justices, in an 8-1 vote, said the Food and Drug Administration may raise the allowable levels of naturally occurring poisons in corn, peanuts and other foods without holding public hearings or publishing formal regulations.

The decision was a victory for an array of food firms, which had said the lower-court ruling, if allowed to stand, could “seriously disrupt the nation’s food supply.”

The losers--two Ralph Nader consumer groups--said the ruling would shut the public out of decisions affecting the purity of the nation’s foodstuffs.

The outcome turned on an ambiguous sentence in a 1938 law: “The secretary (of agriculture) shall promulgate regulations limiting the quantity (of the poisonous substance) to such extent as he finds necessary for the protection of public health.”

Justice Sandra Day O’Connor said the sentence could be read either to require the secretary to promulgate regulations “to such extent as he finds necessary” or to require him to limit the poisonous substance “to such extent as he finds necessary.”

Stevens Dissents

Because the law is unclear, the court said it would not overturn the FDA’s judgment that formal regulations were not needed. Only Justice John Paul Stevens dissented. (Young vs. Community Nutrition Institute, 85-664.)

The case began with a dispute concerning an acceptable level of aflatoxins, a cancer-causing mold that grows on products such as corn.

The National Academy of Sciences has called aflatoxins the “most potent carcinogen known in laboratory animals.”

The FDA had limited the acceptable level of aflatoxins to 22 parts per billion but, in 1980, allowed some shipments of corn to be delivered with “tolerance levels” of up to 100 parts per billion. A Washington consumer group opposed that change and obtained a federal appeals ruling overturning it. The Supreme Court in turn reversed that ruling on Tuesday.

FDA Commissioner Frank E. Young said he was “delighted” by the high court ruling. The lower court ruling, if allowed to stand, “would have tied our hands terribly. In a public emergency, we can’t go through the process of rule-making,” Young said.

Attorneys for the food producers said that Tuesday’s ruling averted a headache for them because the lower court ruling, if upheld, meant that all related foodstuffs would have been declared “adulterated” until the FDA could publish formal rules.

In another case, the justices ruled that states may not limit the special preferences they give veterans for civil service jobs to those who were residents when they entered military service.

The court, by a vote of 6 to 3, struck down a New York law that gave additional points on examinations to veterans who served during time of war and lived in the state both currently and when they enlisted or were drafted.

The ruling appeared to cast doubt on laws in about 15 other states that grant a wide range of benefits, including job preferences, educational assistance and home loans, to veterans who were residents when they entered the service. The California Department of Veterans Affairs said that the state gives some preferences to veterans who were born in California or who could establish that they were bona fide residents at the time of entry or reentry into the service.

The justices rejected contentions by New York authorities that the law was justifiable because it encouraged residents to join the armed services, induced veterans to return home, helped veterans reestablish themselves and provided the state with job applicants who had useful experience.

Opinion by Brennan

Justice William J. Brennan Jr., in a plurality opinion, said that those interests could have been met by granting job preferences to all otherwise qualified veterans. (Attorney General of N.Y. vs. Soto-Lopez, 84-1803.)

The law, Brennan said, violated constitutionally protected rights to migrate freely and to receive equal protection of the law.

“Members of the armed forces serve the nation as a whole,” he said. “While a service person’s home state doubtless derives indirect benefit from his or her service, the state benefits equally from the contributions to our national security made by other service personnel.”

In dissent, Justice Sandra Day O’Connor said the law was a constitutionally permissible way of providing returning war veterans with “a tangible and useful expression of gratitude.”