Peter Barton Hutt, senior counsel at the Washington DC law firm Covington & Burling, addressed a Senate committee last week in support of the National Uniformity for Food Act.
"It would be impossible to maintain the national food market that we have come to demand if each of the 50 states imposed its own separate food safety and warning requirements," said Hutt at a hearing of the Senate Committee on Health, Education, Labor and Pensions (HELP) on Thursday.
Last week's hearing, during which seven speakers addressed the committee, was designed to examine the support and opposition for the proposed bill, which was approved in the House of Representatives in March and is now due to be considered by the Senate. If passed, the bill would standardize warning labels and food safety requirements throughout the US.
Hutt stressed that the proposed legislation is not unique or unprecedented.
All meat and poultry products regulated by the US Department of Agriculture (USDA) have uniform safety standards, as set out under the Federal Meat Inspection Act and the Poultry Products Inspection Act. And in 1994, the Nutrition Labeling and Education Act (NLAE) was enacted, establishing uniform nutrition labeling requirements on manufactured foods.
"It is a conspicuous anomaly that a statutory requirement for national uniformity does not currently exist for food safety and food warnings for products regulated by FDA," said Hutt, who has in the past served as chief counsel for the Food and Drug Administration (FDA).
"The absence of uniformity in these areas is an historic accident that cannot be explained by fundamental differences between food safety and all of the other areas in which the Congress has provided for consistent and uniform regulation," he added.
"There are inherently national matters for which national uniformity is essential to an orderly and free national marketplace."
In his testimony, Hutt summarized the four main features of the National Uniformity for Food Act, or S. 3128. These included uniformity for food safety regulation; uniformity for food safety warnings; implementation of the legislation and the process for consideration of State requirements; and specific exemptions.
Section 2(a) of the act provides for uniformity in food safety regulations, amending the existing uniformity provision in the Federal Food, Drug and Cosmetic Act.
"The premise of this provision of S. 3128 strikes me as straightforward: thebasic provisions of law - whether federal or state - under which the safety of the food supply is regulated, ought to be the same. If a state were to apply different standards to determining, for example, whether a food was adulterated, than other states or the federal government, interstate commerce in food would be chaotic," he said.
Section 2(b) of the act provides for uniformity in food warnings, focusing exclusively on food safety warnings and prohibiting states from imposing any warning that is not identical to an FDA warning.
This section of the act is the one that has inspired the most opposition, particularly from California, where the bill would override the state's infamous Proposition 65. This currently requires that food manufacturers alert customers about the existence of cancer-causing compounds in food.
But according to Hutt, under Proposition 65, chemicals used in food are determined to present a significant risk by using a vastly different approach to risk assessment than that used by FDA and EPA, resulting in a risk often being asserted where it does not exist.
"The claims that Proposition 65 has resulted in safer food are often not correct (...) Proposition 65 creates the illusion of safer food while simultaneously creating a proliferation of warnings that can only cause consumers to believe that 'everything is unsafe'," he said.
He added that under the new bill, states would remain free to issue their own warnings to citizens of their states, even if there is no federal label warning or if the state-issued warning contradicts a federal warning.
The third and fourth features of the bill refer to the implementation of the legislation and the process for consideration of state requirements. Under this provision, states can petition FDA for either an exemption from national uniformity or to adopt the state requirement throughout the country. After a two year public process, FDA is required to make a science-based decision, until which time state requirements will remain in effect.
"The national uniformity legislation represents a balanced approach, incorporating both the need for a consistent and coordinated approach to food safety and food warnings throughout the country, while retaining the authority of states to take the lead on local issues, to collaborate with FDA to assure appropriate national regulatory requirements, and to cooperate in a comprehensive enforcement system that will protect the public in every jurisdiction throughout the country," concluded Hutt.
Other speakers at the hearing included William Stadtlander, the owner of Homestat Farm, which manufactures the 'healthy' cereal product Wheatena, and who was sued under California law because his product contains acrylamide.
William Hubbard, a recently retired FDA official who has been involved in national uniformity for food safety repeatedly over the years, also addressed the committee. Hubbard expressed his opposition to the bill, stating that the FDA is under-resourced to conduct such a sweeping operation. He claimed that the bill was confusing in itself and would create a "vacuum in safety oversight".