SN ASKS 2006

LUCIA MOSES

Beltway Food Fight

SACRAMENTO, Calif. - The National Uniformity for Food Act, which passed the House recently, pitted consumer and environmental advocates against food industry groups. The former argued the act would weaken state safety regulations that protect consumers from unsafe products, and in its place make states petition the Food and Drug Administration in a cumbersome and uncertain process. According to the food industry, having different laws from state to state confuses consumers. At the root of the act is California's Proposition 65, which requires companies to disclose any substances that cause cancer or birth defects in their products. With the federal bill headed to the Senate, SN asked Peter Larkin, president of the California Grocers Association, to weigh in on Prop 65's impact and why he thinks the federal act is needed. Here are excerpts from the interview:

SN: The House just passed HR 4167, the Uniformity for Food Act, which would establish a single set of food safety standards. If it becomes law, what do you think would be the impact on states like California that have food regulations that are stricter than the federal government's?

PL: The Uniformity Act doesn't necessarily preempt Prop 65. It's just going to require that any enforcement proceedings be coordinated with the FDA. Prop 65 will continue to exist. There will be another level of review prior to any warnings going on any products.

SN: How has Prop 65 impacted retailers in California since its passage in 1986?

PL: If you are not subject to a judgment or required under Prop 65 to warn, you don't have to. You may be exposing yourself to potential litigation if you don't, which is why we advise our members to consult with their legal counsel. And it is a constant that you have to keep going back and reviewing whether you're still in compliance. There are probably many retailers around the state that aren't even aware that there is an issue and are probably not doing anything. I have been in this job 10 years, and I don't think I've ever been here when there wasn't at least one or two Prop 65 suits filed against retailers for a wide variety of products. It has resulted in high legal expenses, confusion about products, whether or not to label. The Uniformity for Food Act will bring more certainty to how one is to comply.

SN: Prop 65 reportedly has led to reduction of arsenic in bottled water and lead in calcium supplements, and mercury in fish. States have used Prop 65 and similar controls to negotiate with food companies to remove contaminants and change their products so warning labels weren't needed. Aren't those good things for consumers?

PL: State and federal regulators will continue to work with food manufacturers and suppliers to make sure we have a safe and wholesome food supply. There are naturally occurring carcinogens and reproductive toxicants. There is an exemption in Prop 65 for those. You can't completely remove all of those from our food supply or from various products. There's nothing anyone can do to reduce mercury in fish. The FDA has been providing information to consumers about who should eat tuna, what parts of the population are at risk. The interim, not final, warnings signs on tuna are really taken from FDA materials. If the safe harbor warning signs that are part of the Prop 65 system were to be posted at the seafood counter, you would have scared people away from eating tuna.

SN: Is there any evidence you can point to that consumers, given that they tend to shop in their own states, are confused by different regulations from state to state?

PL: It's kind of anecdotal. The mercury-in-tuna stories have appeared all over the country. The pending issue on acrylamide has gotten a lot of press attention and caused confusion. Products are distributed from all over the world. Consistency and national food labeling allows consumers to have access to the most reliable information.

SN: Do you have any concern that there could be a backlash if consumers view the act as helping industry at the expense of protecting the public?

PL: I think the answer is no, because the arguments are on our side. We're not trying to pull one over on consumers. We're trying to improve and strengthen food safety and warnings laws. This is a benefit for consumers, and if they listen to the message, I think they will understand that.