Food Fight

Congress is considering a bill that would mandate national food-labeling standards and override widely varying state laws. Sounds like a good idea - until you look at who's pushing the legislation. Why the National Uniformity for Food Act might be bad for America's health.

By Richard Bradley

Photo by Dragan Sasic

IT’S A RARE THING when one public official openly mocks another, much less calls him mindless fecal matter. That’s why the recent exchange between Michigan congressman Mike Rogers and California attorney general Bill Lockyer was so telling: Both politicians are prime movers in a vicious fight over how America’s trillion-dollar food industry warns consumers about cancer-causing chemicals.

Rogers is the Republican co-sponsor of House Resolution 4167, the National Uniformity for Food Act, a controversial bill that would mandate national standards for food labeling. Supporters claim that the legislation would benefit consumers by ensuring that food labels are consistent from state to state; opponents, such as Lockyer, claim that the bill is a backdoor maneuver by the food industry to undercut tough state labeling laws that are stricter than federal regulations.

Explaining the legislation in early March, Rogers said that “a pregnant woman buying peas from a shelf in Michigan has the same right to food safety information as a pregnant woman buying peas in California.” Lockyer happened to be in Washington at the time, and when asked about Rogers’s comment, said, “What a dumb shit,” and pointed out that peas carry no safety warnings in either California or Michigan. When astounded reporters followed up, Lockyer qualified his remark—perhaps, he said, he should have called Rogers “pea-brained.”

The fight over food had just gotten ugly—and in the months ahead, it’s likely to grow only more so.

H.R. 4167, which the House of Representatives passed last spring by a heavily Republican vote of 283-139, sounds like proconsumer legislation. It requires the Food and Drug Administration (FDA) to create warning labels that supercede state regulations. Such labels—we’ve all seen them—could warn consumers that a food product might contain harmful substances, or that certain segments of the population (like pregnant women) should avoid certain foods because of the potential health effects. “There’s a proliferation of different standards in more and more states, and that could lead to confusion among consumers,” Cal Dooley, president of an industry lobbying group called the Food Products Association (FPA), told the Fresno Bee. As Rogers has explained, “Creating a uniform system assures Americans that no matter where they live or travel, they can depend on food labels to reflect the contents of food.”

That sounds helpful enough. After all, while organic foods have to meet the strict standards mandated by the Organic Foods Production Act of 1990, there are no such national criteria for other foods sold in the U.S. And though organics may be the fastest-growing segment of the food market, they are still only a tiny fraction of it—$15 billion out of a $1 trillion business. The vast majority of the food Americans purchase is still produced by huge agribusinesses and food companies—ConAgra Foods, General Mills, Kraft Foods, and so on. Shouldn’t the federal government dictate what information these companies disclose about the contents of their products?

But, as is so often the case in Washington, the National Uniformity for Food Act isn’t really what it sounds like. To fully understand the purpose of the bill, and why California’s attorney general claims that it’s bad for consumers in California and every other state, you have to go back 20 years to a landmark California ballot initiative known as Proposition 65.

Though most people outside of California have never heard of it, Proposition 65 is one of the most important and influential state laws passed in recent decades. Written during a period of growing concern about chemicals in food, Prop 65 was passed overwhelmingly by California voters, 63 percent of whom voted for it in 1986. Put simply, the new law required companies doing business in California to warn consumers if their product contained a chemical that was carcinogenic or caused birth defects. If one of their products contained such a chemical—California now lists some 750 of them—and did not carry a warning, the companies could be sued by the state and private attorneys.

Almost immediately, Prop 65 began having a dramatic effect, as companies that had no desire to add warning labels to their products quickly began to reformulate them, eliminating potentially carcinogenic or birth defect–causing substances (after all, would you buy a box of cookies if the label announced it contained a carcinogen?) Prop 65 got results: It hastened the end of lead-soldered cans; led to the removal of arsenic from bottled water; ensured the prohibition of the sale of Mexican candy containing high levels of lead; and prompted mercury warnings at fish counters across the state. And Prop 65 is part of the reason that alcoholic beverages now carry a surgeon general’s warning.

In short, Prop 65 made it clear that the American public thought warning labels were a good idea. “Proponents will tell you, and it is true, that Prop 65 litigation not only has resulted in warnings, but in the reformulation of a significant number of products,” explains Rick Coffin, aa partner at the California firm of Barg Coffin Lewis & Trapp, who specializes in defending companies from Prop 65 lawsuits.

Nor was Prop 65’s effect limited to California. Because the state is the largest market in the country, food companies could not simply withdraw their products from sale there. Instead, they were faced with the choice of either selling a different product in California, or reformulating their product for uniform nationwide sale. That wasn’t really much of a choice—omitting a known carcinogen from food sold in California, while keeping it in products sold in the other 49 states, would create a massive liability problem. So they purged their products of the chemicals across the board.

Big business, however, hated the law. “Ever since California voters approved Proposition 65, the chemical, food, and other industries have been trying to take it away,” argues Jim Wheaton, an environmental attorney who files Prop 65 litigation. Food industry reps, in particular, charged that the law was too broad, creating an enormous financial incentive (and little disincentive) to sue food companies even when the link between the chemicals in question and cancer was marginal. Consequently, the food industry has been trying to gut Prop 65 for decades. “They know they can’t do it with a vote [in California],” says Jim Wheaton. “So they’ve been trying to preempt it from Washington.”

According to David Roe, an environmental attorney generally considered to be the principal author of Proposition 65, the industry efforts to subvert the law began during the Reagan administration, continued into the first Bush White House, and resurfaced after Republicans took control of Congress during the Clinton administration. None of them succeeded—simply, Roe claims, because the industry could not credibly arguet hat Prop 65 was bad for consumers or for industry. “I’ve seen these attempts in almost every Congress since before the law went into effect,” Roe says. “They’ve primarily been very highly funded [by the food industry]. The cover story is always, ‘We need one consistent food label nationwide, or consumers will be confused.’”

This is where the National Uniformity for Food act comes in. No matter what its congressional advocates say, the bill is fundamentally another attempt to hobble Proposition 65. And this time, the industry has both a Republican Congress and a Republican White House on its side—along with an FDA that is probably more politicized and less enforcement-oriented than it has ever been.

Scott Riehl, senior vice president for government affairs at the FPA, doesn’t deny that the food industry is targeting the California law. “If there is a state law out there that is based on sound science, we’re going to be supportive of that,” he says. “But you get certain things out of certain states that make no sense. Prop 65 is the best example.”

Still, a straightforward case against Prop 65 isn’t easy to make: When asked by USA Today to name a single instance in which manufacturers have put different labels on a product to meet varying state requirements, FPA president Cal Dooley drew a blank. Moreover, despite their pro-consumer talking points, most of the bill’s advocates don’t seem eager to be associated with it: Neither Mike Rogers nor Brooklyn congressman Edolphus Towns, H.R. 4167’s Democratic co-sponsor, consented to interviews about the legislation. The House didn’t even hold a committee hearing before voting on the legislation, a highly unusual omission. “A bill like this cannot stand the light of day,” argues Rick Doe. Answers FPA’s Riehl, “The thinking was that the bill had so many cosponsors, it was so bipartisan, a hearing was unnecessary.”

Maybe. But it is highly unusual for federalism-minded Republicans to vote for a bill replacing state regulations with federal ones. “I’m not sure how I feel about the Uniformity for Food act,” admits Gregory Conko, a senior fellow specializing in food safety issues at the Competitive Enterprise Institute, a conservative think tank in Washington. “My general preference would be to devolve power out of Washington and toward the states. But in my gut, I’d like to think that [the new bill] will prevent stupid and ridiculous laws like Proposition 65.”

Looming on the horizon is the biggest food fight Prop 65 has ever generated—the debate over whether French fries cause cancer (see opposite page). Meanwhile, in late May, the legislation was introduced in the Senate by Republicans Richard Burr of North Carolina and Pat Roberts of Kansas, as well as Nebraska’s Ben Nelson, a conservative Democrat. There’s no timetable yet for its consideration, but it’s likely that most Americans won’t hear much about it during the leadup to the fall elections—food labeling, after all, is not a high-profile or a hot-button issue, like gay marriage or flag-burning. But the act could have a profound impact on something more important: the stuff we eat every day.

In April 2002, a Swedish research laboratory discovered something that shocked the world of food manufacturing: When you cook starchy foods at high temperatures, they manifest a chemical called acrylamide, an organic compound used to manufacture, among other things, plastic products, contact lenses, diapers, and paper. Among its adverse health effects, like causing circulatory-system damage, acrylamide is a well-known carcinogen: The EPA regulates its content in drinking water, and the state of California has recognized it as a carcinogen since 1990.

No one knows just how the cooking process produces acrylamide, but it does—in substantial quantities, and particularly in potato products such as chips and French fries. According to the California attorney general’s office, a state-sponsored study found that a large order of fast-food French fries contained levels of acrylamide that are 300 times higher than the amount that the EPA permits in drinking water.

The discovery prompted the World Health Organization and the FDA to initiate studies examining whether acrylamide in food caused cancer. (So far, they’re inconclusive.) It also triggered Prop 65 litigation, first from consumer groups, then from the attorney general’s office, which in 2005 filed suit against nine manufacturers of French fries and potato chips, including McDonald’s, Burger King, Frito-Lay, and Heinz. Since no one has yet figured out how to make French fries and the like without producing acrylamide, California wants to force manufacturers and sellers of potato products to post warnings about acrylamide, as Prop 65 mandates.

In return, the American Council on Science and Health, an industry-funded group known for taking probusiness positions, filed a lawsuit against Whole Foods, claiming that the chain’s baked bread also contained acrylamide—which it did, at extremely low levels. The lawsuit, an admitted attempt to gin up anti-Prop 65 publicity, quickly disappeared.

But concern over acrylamide in cooked potatoes won’t go away so quickly, and as you might expect, the companies in question aren’t very happy about that. They say that acrylamide levels in foods are too low to cause cancer, and in any case, acrylamide has never been proven to cause cancer in humans, only lab animals. “The industry’s got a problem,” says Rick Doe. “They can’t claim that acrylamide isn’t a carcinogen. All they can claim is that there’s not enough here to worry about.”

Scott Riehl, of the FPA, responds that there isn’t enough there to worry about—and besides, acrylamide has always been in food, even if we didn’t know it before the 2002 Swedish study. “We have dealt with acrylamide since the cavemen started cooking their food,” he says. “Now we are facing the possibility that every bunch of asparagus, every loaf of bread, every jar of almonds, every potato product will have to carry a label that says this product contains an ingredient that could cause cancer.” Riehl is exaggerating—but for the potato industry, at least, acrylamide is an enormous problem.

Might French fries really cause cancer? That’s news that most of us wouldn’t want to hear. And if America’s food industry has anything to say about it, we won’t. —R.B.

Issue 25

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