U.S. Considers Nullifying Prop. 65 Food Warnings

A White House policy council, reacting to pleas from the food industry, decided Wednesday to consider whether the federal government should nullify the authority of California’s Proposition 65 to require consumer warnings on food products.

The Domestic Policy Council, made up of representatives of the Cabinet departments that oversee domestic programs, directed its staff to determine whether the strict California law, enacted by the voters in 1986, duplicates or conflicts with the federal Food and Drug Act, a panel spokesman said.

If that is the conclusion, the group could recommend that before leaving office, President Reagan issue an executive order declaring that the California law is preempted by the federal law.

The action was hailed as a victory by some food industry officials who have criticized the California standards as unnecessary and costly.

“We think this is the formal beginning of a major policy review,” said Jeffrey Nedelman, vice president for public affairs for the Grocery Manufacturers Assn. “We think we have a crazy situation on our hands, and before it gets really crazy, the government is going to take a real look at the problem.”

But environmental advocates in California condemned the council’s decision.

“This is a clear industry-orchestrated sneak attack directly on Proposition 65,” said David Roe, an attorney for the Environmental Defense Fund and a principal author of the California initiative.

Some Proposition 65 defenders, however, were heartened by the fact that the council took no decisive action on the issue. And staff members of a liberal congressman who favors strict food labeling said that they doubt that anything will come of the study, which will not be completed until December.

The Safe Drinking Water and Toxic Enforcement Act of 1986 requires companies to give California consumers a “clear and reasonable warning” if a product contains a chemical that poses “a significant risk” to their health. A wide variety of industries, including gasoline service stations, convenience stores and chemical plants, have posted warnings about the presence of chemicals known to cause cancer and birth defects.

Temporary Exemption

But the state has granted a temporary exemption from the warning requirements for food products, drugs and cosmetics that already meet existing federal and state safety standards. During the next two years, the state will analyze more than 50 chemicals that could be found in these products to determine whether warnings should be required under Proposition 65.

Food industry officials contend that none of their products pose a danger to consumers. But they fear that Proposition 65 may lead to putting warning labels on food packages to alert consumers to the presence of lead, arsenic or benzene, substances that are present in minute quantities in many common products.

Last year, the National Food Processors Assn. and the Grocery Manufacturers Assn. urged officials of the federal Food and Drug Administration to intervene to stop the California law before it took effect. They argued--without success--that the federal law already set standards for food products and that state action was unjustified.

Meese Presided at Meeting

In recent weeks, however, the industry officials got the attention of top Reagan Administration officials, including Atty. Gen. Edwin Meese III and Office of Management and Budget Director James Miller. Both reportedly favor a federal move to preempt the state law, according to one official who attended the meeting. Meese presided over Wednesday’s session.

But others were troubled by what they saw as a conflict with the Administration’s strong philosophy supporting states’ rights.

Rather than settle the matter Wednesday, the top officials authorized the study of the state law “to see whether it creates the kind of conflicts that might warrant a federal preemption,” said one official who attended the session.

The group is to report back to the Domestic Policy Council in December, only weeks before Reagan leaves office on Jan. 20.

Legal Authority

A White House official said the President has the legal authority to preempt a state law or regulation if it was found to conflict with “the federal regulatory purpose” or orderly interstate commerce.

In the event of such an executive order, California state officials could go to court to defend the state statute.

Environmentalists in California characterized the council’s action as “an eleventh-hour move” by the Administration to aid the food industry.

“They want to wipe out the ability of all the states to do anything about food regulation,” Roe said. “For eight years, they have talked about deferring to the states, and now they want to reach out and throw away 82 years of federal precedent at the behest of the food industry.”

The Food and Drug Act of 1906, which established the federal safety standards for food and drug products, has not been interpreted to preempt states from setting their own stricter standards, Roe said.

The federal review will be complicated by the fact that the Deukmejian Administration has moved cautiously to implement Proposition 65. Food industry officials have complained about inconsistent state and federal regulations, but have not cited specific examples of how the new California law has caused problems for the industry.

The food processors association says its worst fear is that other states will follow California’s lead and force them to package foods differently for different states.

‘Regulatory Reform’

“The prompt issuance of a preemptive regulation to ward off the burdensome and unnecessary California warning requirements for foods would constitute precisely the type of regulatory reform that has been so vigorously advocated and practiced by the current Administration,” Charles J. Carey, association president, said in a letter to federal officials.

A White House official who attended the policy council meeting, but asked to remain anonymous, said the creation of the working group would likely be announced shortly, but declined to predict how the President will respond to a possible recommendation to invalidate the law.

“There are, of course, different opinions on this, but it really depends on what the working group finds and what they recommend,” the White House official said.

Savage reported from Washington and Paddock from Sacramento.