The Food Police Go to the States

When we think about the men who gathered in Philadelphia in 1787 to craft our Constitution, we usually picture the greatest men of their age, putting aside self interest and struggling to shape the blueprint of a nation. This is a worthy and honorable portrait and in many ways, an accurate one. But too often we forget that there were concrete events that provided the impetus for their gathering, and many related to commerce. The pre-Constitutional national government had proven completely inept when it came to managing affairs between the states, and merchants found it increasingly difficult to conduct business as a result of the myriad of often-conflicting state laws and regulations. Large states were able to impose their will on regions or even the whole country.

Today, we're starting to see a similar development in the world of food. Having failed to achieve any of their objectives at the federal level, food police groups like the Center for Science in the Public Interest are turning to the states. And they're finding willing allies, especially in California, where trial lawyers and Attorney General Bill Lockyer have embraced their cause with gusto. Under a 1986 initiative called Prop 65, companies doing business in California must put warning labels on products that MIGHT contain a chemical that the state thinks COULD be a carcinogen or reproductive toxin. The fact that the chemical has been shown to be safe to humans in laboratory tests is irrelevant. So are the health benefits of the food or drink that must carry the label.

The list of "dangerous chemicals" contains more than 1,000 substances. And until recently, California assigned new chemicals to the list not by the scientific method but by lottery. Each chemical was assigned a number, which was then matched against that day's drawing in the California lottery. When a chemical's number came up, it magically became "dangerous."

Once a chemical makes it on the list, the trial lawyers take over. They can sue any company they suspect has a listed chemical in one their products. The companies almost always settle, and the trial lawyers cash big checks. The more important impact, however, is that these settlements, no matter how frivolous the complaint, force the companies to go back and reformulate their products - not just for California, but for the whole country. And if California ever forced a company to put a warning label on a product, the same warning label would have to be added to the product nationwide. Otherwise, the company would face lawsuits from trial lawyers in all fifty states.

Unfortunately, California isn't alone. The New Mexico legislature is currently considering a bill that would require warning labels for products containing aspartame, or ban it outright. Aspartame, of course, is the primary sweetener in diet soft drinks and a range of other beverages. New Mexico's campaign against aspartame comes in spite of a recent announcement from a federal panel of experts that the substance is perfectly safe. Needless to say, it also ignores consumers who enjoy diet soda and choose it as a healthier alternative to high-sugar, high-calorie drinks.

No single state should be able to impose its will on the whole country - especially California and New Mexico, states that are famously out of step. Fortunately, there's a bill before Congress to restore sanity and stop the food police and the trial lawyers in their tracks. It would do for food warning labels what's already been done for nutrition labels, agricultural products and the like - establish one clear, national standard and preempt state laws like Proposition 65. It's called the Uniformity for Food Act, and it recently passed the House. Now it's waiting for Senate action. Here's hoping they get busy. Otherwise, it won't be long before food packages have more disclaimers than drug commercials.

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