Food Regulations: Truth & Consequences

July 1, 2006
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Food Regulations: Truth & Consequences
By Bob Gatty
Separating fact from fiction on the National Uniformity for Food Act

One of the top legislative priorities for the Snack Food Association this year is the National Uniformity for Food Act, which provides for national, uniform safety standards and warning requirements for food products. The SFA believes this legislation is critical to eliminating confusion and providing strong, consistent safeguards for consumers and food companies alike.
The bill would amend the Federal Food, Drug and Cosmetic Act to create a system that not only recognizes the role of state and local governments in the regulation of food products, but that also integrates them into the national system.
“Food regulation currently is composed of a variety of different and sometimes inconsistent requirements that make it very difficult for companies that sell and distribute products across state lines,” SFA president and CEO Jim McCarthy explains. “The bill simply seeks to harmonize those differences to eliminate this confusion and complexity.”
National uniformity is not a new concept. In fact, Congress has repeatedly recognized the importance of uniformity in food regulation, McCarthy says, noting that the Nutrition Labeling and Education Act (1990), the Food Quality Protection Act (1996), the Poultry Products Inspection Act and the Meat Inspection Act all contain uniformity provisions.
However, the measure has come under fire by opponents who contend that the act would weaken food safety and labeling laws and thus be harmful to consumers.
“That simply is not the case,” McCarthy says. “The bill takes a measured approach to national uniformity for food by providing a mechanism for a thorough, orderly review of existing state regulations that may differ from a federal regulation.”  
Approved by the House and now being considered in the Senate, the legislation allows for the states to petition the FDA to adopt their rules as a national requirement or exempt it from national uniformity. No existing state requirement that differs from a federal requirement would be preempted without the opportunity for petition, and state requirements would remain in effect while the FDA considers the states’ petitions, McCarthy notes.
During the SFA’s Day in D.C. Summit this spring, many SFA members met with members of Congress and showed their support of the bill. They were encouraged by the response and are hopeful that their contacts and the continued efforts of the SFA through its lobbying activities and the National Uniformity for Foods Coalition will bear fruit.
If enacted, the new measure would not result in an instant and dramatic change in food safety and labeling laws. Instead, uniformity would be achieved gradually as the FDA acts on the states’ petitions, either adopting them as national requirements or concluding that they should not continue in effect. FDA’s decisions on state petitions would occur only after public input through a comment process.
The bill also provides that where FDA has acted by setting a safety standard for a food ingredient or constituent, the states would adopt and enforce the same standard.  If the FDA has not set a safety standard for a particular substance in food, the states would remain free to set and enforce their own standard.
In addition, the bill would provide for national uniformity in product warnings.  States would not be permitted to require the regulated industry to communicate a warning in labeling, advertising or any other form of public communication if that warning differs from that imposed under Federal law. The authority of the states to issue warnings remains unhindered. In fact, they remain free to issue their own public warnings under state laws at any time and under any circumstance.
Moreover, the authority of the states to act if presented with an imminent hazard is preserved.
The bill does not affect state authority in several areas that are traditional local food enforcement matters: freshness dating, open date labeling, grade labeling, state inspection stamp, religious dietary labeling, organic or natural designation, returnable bottle labeling, unit pricing, and statement of geographic origin.
Existing provisions related to food sanitation are not subject to national uniformity. Traditional federal/state/industry cooperative sanitation programs related to restaurants and retail stores would not be affected. Existing state requirements for shellfish warnings also would not be affected.
National uniformity does not apply to the federal or state enforcement powers (embargo, recall, or other enforcement powers).
During the 109th Congress, the House passed the National Uniformity for Food Act (H.R. 4167) by a vote of 283-139.  The bill was introduced by Rep. Mike Rogers (R-Mich.) and Edolphus Towns (D-N.Y.) and was co-sponsored by 225 additional representatives.
“We are hopeful that Congress will enact this legislation before it recesses for the fall election campaigns,” McCarthy says. “There are not many legislative days left on the calendar, given the upcoming August recess, but we will continue to work hard to win approval.”
What the bill DOES:
• Makes food safety regulations for packaged food consistent across all 50 states and under the jurisdiction of the Food and Drug Administration.
• Provides consumers with a single set of consistent, science-based food safety regulations.
• Curbs regulatory burdens on all businesses by setting a single set of national guidelines.
• Extends to packaged food the same consumer protections as in other areas of federal regulation, including meat, poultry, nutrition labeling, and drugs and medical devices.
• Establishes a procedure requiring the FDA to evaluate state regulations different than its own and consider applying that state’s standards nationally.
What the bill DOES NOT do:
• Makes policy regarding food safety enforcement.
• Restricts states’ enforcement powers.
• Makes policy regarding sanitation or changes state authority in this area.
• Makes policy regarding the handling of hazardous foods.
• Alter states’ food safety programs, including inspections, analysis and dairy sampling. Require states to follow federal procedures that may be more time-consuming.
• Pre-empt existing state food safety requirements without a thorough FDA evaluation.
• Prevent states from taking enforcement action without federal action or approval, so long as state food safety laws are the same as the federal.
• Interfere with states’ rapid response mechanisms to take action in emergency.

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