A recent LA Times OpEd by Al Meyerhoff and Carl Pope said the House of Representatives this month passed the National Uniformity for Foods Act, a measure that would kill or cancel significant parts of 200 food-safety laws in 50 states. This ill-advised bill, supported by millions of food-industry dollars, passed without a single hearing. Now it’s in the hands of the Senate. If it passes there, among its many victims would be California’s requirement that foods containing harmful chemicals display a warning for consumers.
Those warnings are mandated by Proposition 65, enacted, as one court described it, to be “a legislative battering ram” by an overwhelming majority of voters in 1986. In passing the measure, Californians wanted to encourage manufacturers to remove dangerous substances from their products before they reached supermarket shelves.
Proposition 65’s requirement that companies either warn consumers or remove harmful chemicals works, and it remains a vital protection.
Consider the controversy over mercury in tuna, swordfish and other types of seafood. The Food and Drug Administration recently announced that seafood contaminated by mercury — a heavy metal found in our oceans mainly as the result of burning coal — can be so hazardous that women “who are pregnant or may become pregnant” should avoid consumption. Mercury was present in fish at levels sometimes far exceeding the FDA’s “action level.”
So what “action” did the FDA take? Instead of seizing mercury-laden fish, as federal laws allow, it issued a press release; the seafood remained on supermarket shelves. Despite the FDA’s inaction, Proposition 65 mandated that consumer warnings be placed on contaminated seafood sold in California. That encouraged the creation of the nation’s first line of low-mercury fish under the “Safe Harbor” brand. Now it is your choice.
Or consider Teflon, ubiquitous in consumer products from pots to carpets. A science advisory board of the federal Environmental Protection Agency — after much laboratory research — this month said Teflon’s main ingredient, perfluorooctanoic acid, or PFOA, is “likely to be carcinogenic” in humans. What did the EPA do? Call for yet more research. Meanwhile, one study found that 96% of American children have PFOA in their blood.
After being hit with a $16.5-million fine for violating the Toxic Substances Control Act by suppressing health and safety data, Teflon’s primary manufacturer, DuPont Co., said it would “voluntarily” reduce PFOA releases into the environment — over the next 10 years.
And what happens until 2016? Not much. However, if a California agency grants a petition from the Natural Resources Defense Council, the Sierra Club and the steelworkers union (representing DuPont workers), PFOA will soon also become subject to Proposition 65. And unless DuPont can then prove that the chemical’s risks to humans are insignificant, warnings will be required.
The clear lesson is that states often do more to protect consumers than do federal regulators. So why is Congress even considering passing a bill denying California and other states the right to protect citizens? Follow the money.
All told, food companies have forked over $5.2 million to the bill’s 226 co-sponsors. The Californian members of Congress co-sponsoring the bill in the House received about $670,000 from food interests for this election cycle alone, and more than $1 million for 2004, according to public filings with the Federal Elections Commission. Some of the top money-getters are Reps. Richard Pombo (R-Tracy), $250,208); Devin Nunes (R-Visalia), $558,152); and Dennis Cardoza (D-Atwater) $239,152).
Some people argue that the avalanche of warnings numb the public to real environmental hazards. Perhaps. But the “right to know” provisions in Proposition 65 and other laws give consumers real choices. If one brand of lettuce in the supermarket says it contains perchlorate, rocket fuel and developmental toxins and another does not, the market will work. And exposure to that chemical will be reduced, not just at the dinner table but also “upstream,” for chemical workers in the plants and farm workers in the fields.
This is not the first attempt to preempt Proposition 65 with a federal law. It has survived for 20 years principally because of the leadership of Rep. Henry Waxman (D-Los Angeles), Sens. Dianne Feinstein and Barbara Boxer, present and past attorneys general and the state’s governors — of both parties. But the voice of one governor is conspicuously missing.
In February, Waxman, together with Rep. Mary Bono (R-Palm Springs), wrote to Gov. Arnold Schwarzenegger urging him to oppose the “National Uniformity” bill. Thus far, the response from the governor’s office has been silence. As the debate over food safety moves to the U.S. Senate, it’s time for the governor to make sure this threat to California’s sovereignty is terminated.
AL MEYERHOFF, a former director of the Natural Resources Defense Council’s public health program, is now a lawyer in private practice in Los Angeles. CARL POPE, the executive director of the Sierra Club.