Will Food Laws Be Uniform?
- Published: March 31, 2006, By Sheila A. Millar, Attorney-at-Law, Keller & Heckman, Washington, DC
Legal Briefs
On March 8, the US House of Representatives passed legislation that would preempt food safety and labeling laws. Federal preemption is a legal concept under which states may not enact regulations unless they are identical to federal law.
H.R. 4167, the National Uniformity in Food Act, is intended “to provide for uniform food safety warning notification requirements.” If enacted, it would preempt the California Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Proposition 65, which requires warning labels on substances known to the state to cause cancer or reproductive toxicity. The bill has been referred to the Senate, and opponents are gearing up to oppose its adoption.
Business supporters of H.R. 4167, however, say national uniformity is needed to provide certainty for both domestic and international providers of food and food packaging materials in today’s complex global economy.
The bill includes separate provisions on national uniformity for foods and for food safety warning notification requirements.
With respect to food safety warning requirements, the bill says no state may directly or indirectly establish or continue in effect any notification requirement for a food that provides for a warning concerning the safety of the food, or any component or package of the food, unless it is identical to the notification authority prescribed under the Act.
The definition of the term notification requirement includes any mandatory disclosure requirement through a label, labeling, poster, public notice, advertising, or other means of communication.
States may petition for an exemption or a national standard under the bill. If such a petition is filed within 180 days after enactment, the state notification requirement will remain in effect pending final action on a rulemaking in response to the petition.
In addition, the Act allows states to petition for an exemption if a requirement protects an important public interest that would otherwise be unprotected, would not cause the food to violate federal law, and would not unduly burden interstate commerce.
Specified time periods are provided, and expedited consideration is required if a petition involves a warning related to cancer or reproductive or birth defects, or is intended to allow parents to limit a child’s exposure to cancer-causing agents or reproductive or developmental toxins.
Finally, states may establish a requirement that would otherwise violate the measure through inconsistency with federal law if it is needed to address an imminent hazard to health likely to result in serious, adverse health consequences, subject to adherence to certain procedures.
The bill is under discussion at an unusual time, when some legislators that historically have supported states rights are being persuaded that national uniformity is needed, while others that historically have supported a strong federal role are concerned that the federal government is failing to regulate.
For the converting industry, the role of federal preemption will be of increasing importance, not just in connection with debates surrounding H.R. 4167 but in the field of environmental regulation as well.
Sheila A. Millar, a partner with Keller and Heckman LLP, counsels both corporate and association clients. Contact her at 202/434-4143; This email address is being protected from spambots. You need JavaScript enabled to view it.; packaginglaw.com.
