Tracking Legislative Developments

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Food Product Design

Tracking Legislative Developments

April 1999 -- Regulatory Insight

By: Patrick J. McNamara
Contributing Editor

  When it comes to new food-industry laws coming out of Congress in 1999, signs of new legislation are few and far between. Between the five-seat Republican majority in the House and the aftermath of the presidential impeachment proceedings, it seems that little progress will be made in Congress on industry issues. Instead, look to the numerous federal agencies - not just the FDA - that have a "hand" in developments of interest to the food industry. Agencies such as the EPA and cabinet departments such as Health and Human Services, Agriculture, and Commerce and Transportation are writing, rewriting and amending regulations that will have a more immediate, and potentially greater, impact on the industry than anything likely to be accomplished by Congress or the White House in 1999. These regulations include the following high-profile proceedings:

Irradiation and labeling conflicts

  In December of 1997, the FDA gave final approval for the use of irradiation to aid in the control of foodborne pathogens in red meat, and to extend the shelf life of meat products. Although various advocacy groups have opposed the approval, claiming that industry will take shortcuts on other safety protocols and rely too heavily on irradiation, proponents of the technology maintain that irradiation is meant to supplement, not replace, current food-safety programs.

  In light of the recent ruling by the FDA, the USDA's Food Safety and Inspection Service is proposing to amend the meat-inspection regulations to permit the use of ionizing radiation for treating refrigerated or frozen uncooked meat, meat byproducts, and certain other meat food products. Details on this proposed ruling were published in the February 24, 1999 issue of the Federal Register, and comments are due by April 26.

  As for labeling of foods treated with ionizing radiation, the FDA published an advance notice of proposed rulemaking in the February 17, 1999 Federal Register. Out of these comments will evolve a formal proposal for amending the existing regulations. The goal is to develop a uniform labeling system, since those currently in effect are considered inadequate. Comments on these labeling proposal are due by May 18.

  Various consumer groups, such as the National Consumers League and Consumer Alert, have already voiced their views on labeling, and are pushing to have the warning statement be more prominent than the existing declaration of ingredients. In contrast, the National Food Processors Association (NFPA), in a May 21, 1998 petition, asked that the FDA remove the labeling requirements, claiming they cause "consumer concern about a non-existent hazard, at the expense of discouraging a process that can mitigate very real safety hazards."

  The Center for Science in the Public Interest (CSPI) has also commented on the issue of labeling irradiated foods. According to an excerpt from a May 1998 report, CSPI recommends that any foods "containing ingredients that have been treated by irradiation should be labeled with a written statement on the principal display panel indicating such treatment. The statement should be easy to read and placed in close proximity to the name of the food and accompanied by the international symbol. If the food is unpackaged, this information should be clearly displayed on a poster in plain view and adjacent to where the product is displayed for sale."

Saccharin status

  Recently, the National Toxicology Program (NTP) voted to recommend that saccharin be removed from the government's list of substances considered, or anticipated to be, human carcinogens. When saccharin was first singled out as a possible carcinogen in the late '70s, Congress decided that, rather than banning the sweetener, foods containing it must carry a warning as to its possible carcinogenicity.

  Since its inception in 1978, the NTP has been coordinating the toxicology activities of the National Institute of Health's National Institute of Environmental Health Sciences (NIEHS), the Center for Disease Control and Prevention's National Institute for Occupational Safety and Health, and the FDA's National Center for Toxicological Research. The program is administered by the NTP director, who is also director of the NIEHS.

  The NTP is expected to make a recommendation about delisting saccharin by early this summer, and Health and Human Services Secretary Donna Shalala should make a final decision by the end of the year.

FDA's food-safety agenda

  Joseph Levitt, director of the FDA's Center for Food Safety and Applied Nutrition (CFSAN), has announced that the FDA will give top priority to the review of petitions for new food additives to improve food safety. He notes that it took the FDA four years to approve the use of chlorine dioxide for sanitizing peeled, cut produce that was to be frozen at a later time; and, similarly, four years to approve red-meat irradiation, even though the agency had already approved irradiation for fruits, vegetables, spices, poultry and pork. (Incidentally, he also asked for more-complete data in applicants' initial proposals, stating that delays are often caused by FDA requests for additional data during its review process.)

  Levitt's statment was met with approval by the National Food Processors Association, Washington, D.C., which stated that "CFSAN's list of priorities appropriately places a strong emphasis on food-safety related activities."

  The announcement comes as a follow-up to an announcement by the Clinton administration of an increase in the fiscal 2000 food-safety budget to the tune of an additional $105 million - representing a 15% increase in spending on food-safety programs.

President's council

  The President's Council on Food Safety has decided against recommending the appointment of a "food czar" to oversee the myriad federal food-safety programs, according to a statement issued in March of 1999. This Council was created last year to review a National Academy of Sciences (NAS) food-safety report that, among other things, recommended the creation of a unified regulatory framework headed by one official with control over programs and resources for all federal food-safety initiatives. The Council will, however, move forward to develop a "comprehensive strategic plan" to address nationwide food safety, and is continuing its study of how to make structural changes to the existing framework of federal programs on food safety.

  In response to the Council's plan, NFPA President John Cady issued the following comment: "We agree with this report that improved coordination is needed among the various government agencies overseeing U.S. food safety. This approach holds the greatest potential for truly enhancing what is already the world's safest food supply, rather than creating new layers of bureaucracy and potentially politicizing our food-safety system."


  Patrick J. McNamara is an attorney with the firm of Scarinci & Hollenbeck in Secaucus, NJ. He serves as General Counsel to the National Association of Fruits, Flavors & Syrups, as well as the Chemical Sources Association. A graduate of Rutgers University, he is a frequent lecturer and has authored or collaborated on numerous articles of interest to the food industry. He can be contacted at patrick@njlegalink.com.


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