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Kennedy on National Uniformity for Food Act

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Kennedy on National Uniformity for Food Act

"Thank you, Mr. Chairman, for calling this hearing on the National Uniformity for Food Act, which would prohibit states from applying food safety laws unless they are identical to provisions of the Federal Food, Drug, and Cosmetic Act.

This extreme bill is a giveaway to the food industry, and all Americans will pay for it with their health. Everyone agrees that the bill would pre-empt Proposition 65, the California law that requires warning labels on products that contain ingredients known to the state to cause cancer, birth defects, or reproductive problems. But there is little agreement after that.

The food industry claims that only about a dozen State laws would be pre-empted, but the Center for Science in the Public Interest, with the support of many state officials, has identified about 200 such laws.

For example, according to the Center, the bill would pre-empt statutes regulating the quality of milk and food served in restaurants in all 50 states. It would pre-empt laws on unsafe food and color additives and laws on shellfish in more than a dozen states. It would pre-empt warnings required by at least 18 states about the effect of alcohol consumption by pregnant women on their unborn children.

In Massachusetts, the sale of dead lobster is banned, because it decomposes so rapidly. We can now set more stringent bacterial standards for milk than under FDA guidelines, and ban or require warnings about food or color additives that are considered safe under Federal law. These and potentially other food safety laws in Massachusetts would be pre-empted by S. 3128.

In fact, the bill is so vaguely written that we don't know how broad the pre-emption of state and local health laws would be. There will certainly be costly litigation on the issue. Otherwise, states will have to assume their laws are pre-empted and resort to the costly process in the bill to petition the FDA for exemptions. The Congressional Budget Office estimated costs of $100 million to FDA and $64 million to the states for these petitions over 5 years. But the estimate assumes that California will file one petition for Proposition 65, instead of one for each compound for which that law now requires a warning. Because determinations for each compound are obviously highly fact-specific, there will need to be individualized petitions for each one, and the CBO estimate is obviously too low.

State officials across the nation argue that their laws would be unfairly pre-empted and their efforts to improve the safety of food would be crippled. The legislation obviously is intended to benefit the food industry, regardless of its impact on the right of states to protect the health of their citizens.

Even identical state laws would be limited under this bill. Every state enforcement action would potentially be subject to a federal pre-emption defense, on the ground that the state is imposing a "materially different" requirement than under Federal law. The cases could even be removed to federal court, and this is especially true when neither the FDA nor the state has issued a regulation setting a tolerance for a harmful substance in food.

The bill would, however, allow a state to enforce when FDA has issued a regulation setting a tolerance level for a harmful substance or, if the FDA hasn't issued a regulation, when the state has a policy on the harmful substance, either through regulation or administrative decision.

But the bill blocks the state from enforcing a policy rejected by the FDA. This prohibition is true even when the FDA rejected the policy 20 years ago and there is new science validating the policy.

The bill also implies that a state may not enforce its laws when there is neither an FDA nor a State regulation or policy. In such cases, the state should be permitted to allege that a food contains a substance, that the substance is poisonous, and that it may be injurious to health. The bill implies that local food safety laws—such as those in New York City—may never be enforced, even when they are identical to federal laws.

The uncertainty surrounding enforcement and the hugely increased cost to the states of each enforcement action would drastically reduce the number of those actions, and could deter the states from even bringing them at all. We can't expect an under-funded FDA—which conducts only about 20 percent of domestic inspections and is able to inspect at most 2-3 percent of imported food—to fill this gap.

Congress shouldn't even be considering such a step, especially when we've all focused on strengthening the nation's ability to respond to bioterrorism. Do we really want to prevent a state from doing more to protect its citizens from bioterrorism than the federal government does? Why disarm our state food safety officials—who will be our first responders if terrorists put anthrax in our food supply? The certification by the Secretary of Health and Human Services is hollow reassurance that this that this won't happen—all it indicates that the authors of the bill know this is a real possibility.

If we ever mark this bill up, the first amendment should be to rename it the "Make Way for Terrorism with Foods Act."

Cal Dooley, the President of the Food Products Association, could not cite a single case in which manufacturers had to put two different labels on a food, let alone 50 labels. Label uniformity is obviously not the issue here. Yet the food industry wants us to cripple state efforts to enforce the safety of our food.

In fact, as we all know, the industry wants to be able to add ingredients to food that some states feel may cause serious health risks, or even cancer or birth defects. Which of the Proposition 65 ingredients, for example, does the food industry want to put in our food? I hope these hearings will help us get to the bottom of issues like this.

I thank the Chairman and I look forward to today's testimony."

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