High Court Review May Reignite Pesticide Debate : Food safety: At issue is whether a ‘zero tolerance’ standard on carcinogenic additives should be replaced with one of negligible risk.

Thirty-five years ago, combative New York Rep. James J. Delaney succeeded in attaching a landmark amendment to the Federal Food, Drug and Cosmetic Act, banning the use of food additives known to cause cancer in laboratory animals or humans.

The so-called “Delaney clause,” has not achieved the sweeping force Delaney intended because government regulation has been spotty and Delaney’s meaning disputed. But now the Supreme Court is about to make a decision that could impose the ban fully--and reignite a long-smoldering debate over food safety.

On Monday, the court is expected to announce whether it will review an appeals court decision on the Delaney clause. If the ruling is allowed to stand, it would almost certainly force the government to ban the use of a long list of pesticides detectable in processed food products.

The decision is anxiously awaited by defenders of the Delaney clause and by food processors and agricultural interests who fear the potential economic consequences. It is also being watched closely by reformers who have for years pressed for new, tougher food safety legislation.

Environmentalists hope the court decision will lead to tougher enforcement of existing pesticide regulations and to new laws to reduce use of pesticides in agriculture.

Food processors and farmers contend the time has come to formally replace the “zero tolerance” approach of Delaney with a “ de minimus ,” or negligible risk, standard. That change would permit the Environmental Protection Agency some flexibility to determine when trace amounts of pesticide are acceptable in processed foods, just as it now sets such tolerances for raw food products.

Five years ago, the EPA decided that Delaney permits it to set tolerances for pesticides in processed food when it determines that there is “negligible risk.” That risk was defined in general terms as one in which 70 years of exposure would produce no more than a one in a million chance of cancer.

But last July, the U.S. 9th Circuit Court of Appeals held that there is no such loophole in Delaney’s absolute ban. Under Delaney, the court ruled, carcinogenic pesticides must be prohibited if they are found to be concentrated in processed foods--that is to say that the amount is higher than the concentrations permitted on raw products.

Days before the George Bush Administration left office, then-EPA Administrator William K. Reilly, anticipating the possibility that the agency would be forced to cancel approved pesticide uses for processed foods, solicited comments on future policy problems and options. The comment period extends until April 6.

Stepping into the middle of the imbroglio, new EPA Administrator Carol Browner has said the time has come for a fresh look at pesticide regulation and the inconsistency between regulations concerning raw foods and processed foods.

“There is a need for a comprehensive food safety program,” she said in an interview last week. “Delaney is 35 years old. It needs revisiting and rethinking. There are now many things that we understand that we didn’t understand 35 years ago and which now need to be brought to the table.”

But thus far the Clinton Administration has declined to spell out its position on the “negligible risk” issue.

The Administration also has not said whether it will support pesticide legislation being pushed by Sen. Edward M. Kennedy (D-Mass.) and Rep. Henry A. Waxman (D-Los Angeles), chairman of the Energy and Commerce subcommittee on health and the environment.

Under existing law, Waxman said, Delaney provides “very strict standards on a really small slice” of American food products and a “very loose standard for everything else.”

The objective of his bill, he said, is to broaden protection, bring uniformity to regulation and to provide special protection for foods consumed in especially large quantities by children. The bill would establish a one in 1 million cancer risk standard instead of the zero tolerance of Delaney.

The industry supports legislation that would establish the minimal risk concept, which the EPA adopted in 1988 and the 9th Circuit decision overturned.

Of more immediate moment is what will happen if the Supreme Court lets the 9th Circuit decision on Delaney stand.

Early this month, EPA released a list of 32 carcinogenic pesticides that are now found in trace concentrations in processed food. Browner said the agency does not believe that any of them pose an unreasonable risk to health.

“The current debate,” she said, “is not about health risks, but about the legal interpretation of the statute. However, the agency does believe that the impact of the 9th Circuit Court’s decision upon pesticide users and food processors would be substantial.

“We will be working closely with members of Congress, appropriate federal agencies and other interested parties to assure that appropriate action is taken to address the implementation of the court decision,” she said.

The effect of withdrawing the 32 chemicals will largely depend upon finding acceptable replacements, their costs and the rates of application, said Steve Russell, assistant general counsel of the National Agricultural Chemicals Assn.

“You could wind up with a situation in which more pesticides would actually be applied,” he said.

Jeff Nedelman, a spokesman for the Grocery Manufacturers’ Assn., suggested that the withdrawal of tolerances for pesticides used to preserve food products could lead to renewed consideration of irradiation as a means of food preservation.

Irradiation, which kills organisms that cause food to spoil, has already been approved for a few crops, including strawberries, but the technique has not been widely adopted. Indeed, at least one state--Maine--prohibits the sale of irradiated food products.