Limits on the Table for Food Warning Signs

A bill is gaining momentum in Congress that would give federal regulators the last word on when to require public warnings about food ingredients -- an industry-driven move aimed at reining in California’s Proposition 65.

The 20-year-old law requires businesses of all types to alert the public to substances “known to the state to cause cancer, birth defects or other reproductive harm.” California officials say the law has been effective in pressuring the makers of products ranging from California wines to Kaopectate to reduce the use of substances identified as possible health risks.

Now, as California attempts to require warnings for canned tuna, French fries and potato chips, the food industry is lobbying Congress and its often business-friendly Republican majority to give federal regulators final say on when warnings would be required on packaging, store shelves and in advertising.

Under the federal legislation, states would need approval from the Food and Drug Administration to enact rules that differed from federal standards, something critics say would be hard to obtain.

“I guarantee you FDA will deny every petition that is ever submitted to them,” said Ed Weil, a top-level lawyer in the California attorney general’s office. “Their philosophy is if it was a good and necessary thing, they would have already done it.”

Although the bill has been debated for several years, it is now supported by more than half of the members of the House, including a dozen California representatives. Although the legislation’s fate remains uncertain in the Senate, it is emerging as one of the most hotly debated measures that Congress will face this year.

Calvin M. Dooley, an ex-congressman from Visalia who heads the Food Products Assn. and is among those lobbying for the measure, calls its prospects for passage “better than they’ve ever been.” The measure cleared a key House committee late last year on a bipartisan vote of 30-18.

The bill’s proponents say they are attempting to ensure that the food industry does not have to contend with a patchwork of state laws that could drive up food costs.

“Different labels in different states confuse consumers, who will wonder whether the same product sold in one state is somehow less safe than the same product sold in another,” said Susan Stout, vice president of federal affairs for the Grocery Manufacturers Assn.

Added Dooley: “If you have a proliferation of different standards in all 50 states, it certainly adds to costs.”

But the bill’s backers also acknowledge that their main target is Proposition 65. And that, the bill’s opponents say, should make lawmakers more suspicious in considering the legislation.

David Roe, a Proposition 65 coauthor who practices law in San Francisco, said, “The superficial argument sounds great: ‘We wouldn’t want to have 50 different labels.’ I doubt very much that when [bill supporters] were collecting sponsors, they said, ‘We want to wipe out a California law that’s turned up nasty things in food that we don’t want to talk about.’ ”

Benjamin Cohen, senior staff attorney for the Center for Science in the Public Interest, a consumer advocacy group, said that “there’s no question that the food industry is trying to get rid of Prop. 65.”

The bill is part of a larger effort by congressional Republicans to rein in state actions some lawmakers say unfairly hamper business.

The sweeping energy bill approved by Congress last year gave federal regulators final say over the location of liquefied natural gas terminals -- a provision that grew out of a dispute between California officials and federal regulators over how much authority the state should have in approving a proposed terminal in Long Beach. And Congress is considering a measure that would preempt stronger state laws -- including one in California that requires companies to notify customers of data security breaches.

The food bill’s chief sponsor, Rep. Mike Rogers (R-Mich.), has sought to counter arguments that it would unfairly infringe on state regulatory powers.

“States rights have nothing to do with food safety and the free flow of commerce,” said Sylvia Warner, a spokeswoman for Rogers.

Proposition 65, the focus of a bitter campaign between consumer groups and business interests in California, passed in 1986 with 63% of the vote.

The initiative led to the posting of warnings signs at a wide range of businesses throughout California -- from gas stations to hardware stores.

In many supermarkets, a sign is posted, usually near the seafood section, warning consumers -- especially pregnant women and children -- about the dangers of eating fish that contain mercury.

There aren’t more warning signs in food stores, California officials say, because the idea behind the initiative was to pressure manufacturers to alter products to reduce exposure to toxic substances.

“That’s part of the beauty” of Proposition 65, Weil said. “Companies know people don’t want to buy [a product] with that warning, so they reduce chemicals in their products.”

Industry executives and others have complained for years that the standards used by state officials to determine whether products expose the public to a significant risk of cancer or birth defects is often unsupported by scientific data.

Richard Samp, chief counsel of the conservative Washington Legal Foundation, said the initiative had sparked lawsuits over substances in food “for which there is no scientific evidence to suggest they cause cancer.”

But California Atty. Gen. Bill Lockyer said in a letter to lawmakers that Proposition 65 led to reductions in toxic levels of some substances in food before federal regulators acted -- and “in some instances may have spurred FDA to take action that otherwise never would have been taken.”

The bill in Congress picked up support after Lockyer’s office went to court to require warnings on products such as potato chips and French fries because they contain higher levels of a suspected carcinogen, acrylamide, than other foods. Acrylamide, known to cause cancer in laboratory rats, is formed when starchy foods are cooked at high temperatures.

Food industry officials accused the attorney general of unnecessarily alarming the public. Hunt Shipman, a spokesman for the Food Products Assn., said the case, which is pending, had posed a “major headache for the food industry.”

The Washington Legal Foundation also questioned the basis for the state’s concerns, saying in a statement: “Acrylamide is naturally created by high-temperature cooking and has been a regular part of human diets for thousands of years.”

But Weil, of the state attorney general’s office, said that the scope of the problem of acrylamide in food was not known until recently. “When I was a child, we didn’t wear seat belts or sunscreen, and pregnant women drank cocktails,” he said. “Does that mean it was a good idea, based on what we know now?”

Lockyer also has gone to court to require warnings on labels or in grocery aisles where canned tuna is sold to alert consumers to mercury in canned albacore and light tuna. Mercury is a neurotoxin that can interfere with brain development.

The U.S. Tuna Foundation, an industry trade group, has contended that Lockyer’s efforts are “not grounded in science and will needlessly scare consumers away from affordable foods that are good for them.”

Food industry officials say the proposed bill would still allow California and other states to issue public announcements -- on radio or television, for example -- warning about a substance in a food.

“You can do whatever you want to tell your citizens that you think there is a danger ... but you can’t make the industry put it on its product” without FDA approval, said Stout of the Grocery Manufacturers Assn.

“Taxpayers shouldn’t have to pay the cost of trying to educate the public about toxic chemicals that companies know are in their products,” Weil said. “And a label or sign near the product is much more helpful and available to the consumer than an announcement by the government.”