NEWS : Senate Considers Repeal of Tough Food-Safety Law

One of the nation’s most stringent food safety regulations--the Delaney Clause--is on the verge of repeal as part of legislation quickly making its way through the U.S. Senate.

The provision under attack states that any compound that causes cancer in humans or animals must be banned from processed food. Delaney established the so-called zero-risk measure for known carcinogens and has been applied primarily to regulate pesticides residues.

A bill sponsored by Sen. Bob Dole (R-Kan.) and passed last week by the Senate Judiciary Committee would repeal the regulation as part of a more wide-ranging effort to introduce cost-benefit analyses to federal regulation of food, medicine and the environment. The full Senate is expected to take up the issue in early June. The House introduced similar anti-Delaney legislation on Tuesday.

Prospects of the bill passing the Republican-controlled Senate are good. Previous attempts to repeal or reform Delaney in Congress met with gridlock, pitting environmentalists against the food industry. Now, with Republicans and an anti-regulatory mood ascendant in Washington, the environmentalists are losing the influence and votes that may preclude a similar stalemate.

“The Delaney issue has been stuck in the mud for a long time . . . There have been moves and countermoves by people that fought a long fight over this provision,” said Charles Benbrook, a former director of the Board of Agriculture for the National Academy of Sciences and currently an independent consultant in Washington.

Repeal of the Delaney Clause, however, would be “an extraordinary development” with “significant” implications for farm chemical regulation, Benbrook said.

Food industry representatives applaud the legislation as a necessary reform of “1950s science.” Consumer and environmental groups, however, are alarmed by the prospect of repeal, especially because the current legislation does not include a substitute or alternative to Delaney.

“(Dole’s bill) guts consumer protections from cancer-causing Richard Wiles, vice president of the Environmental Working Group, a Washington-based advocacy organization. “This action is particularly disgraceful in light of rising cancer rates in the general population . . . (This) legislation will allow more cancer-causing pesticides in the food of America’s children.”

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Wiles’ group and others, such as the Natural Resources Defense Council (NRDC), argue that children are more vulnerable than adults to pesticide residues in food.

“There are folks in Congress that are intent on running a railroad over public health protection . . . Their only goal is to eviscerate food safety laws,” said Al Meyerhoff, NRDC senior attorney in San Francisco.

The Delaney Clause--part of the Food, Drug and Cosmetic Act--has long been a source of irritation for the food industry.

The principal argument against zero tolerance for carcinogens is that technology has advanced to the state where infinitesimal amounts of chemical residue can be detected by current laboratory analyses. For instance, some residues can be measured in amounts as small as one part per billion. Regardless of how small the amount, Delaney is unyielding and forbids any carcinogen in processed food.

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“Every study that has come out cites the Delaney Clause as an egregious example of government prevented from exercising sound scientific judgment,” said Jeff Nedelman, vice president of the Grocery Manufacturers of America (GMA), a Washington-based food industry trade group. “No credible independent scientist believes that zero risk is the correct way to go when we are living in a world where you can measures things to parts per billion.”

GMA and other food industry groups maintain that there is sufficient consumer protection in federal laws without the Delaney Clause. The most frequently cited regulations are sections 402 and 409 of the Food, Drug and Cosmetic Act. The measures state that the Food and Drug Administration must require “proof of a reasonable certainty that no harm will result from the proposed use of an additive” (in food).

Legal and court interpretation of this language would implement a standard of “negligible risk” when determining whether pesticides or other additives in food are safe. Such a standard would prevent the use of any chemical in food if its regular consumption would cause more than one additional case of cancer in 1,000,000 adults.

Also at stake in the current debate is an out-of-court settlement, signed in October, between the NRDC and the Environmental Protection Agency. Under the agreement, the EPA agreed to ban 36 pesticides that are currently used in food and are known carcinogens. The NRDC sought the ban because the compounds are in violation of the Delaney Clause.