Upon their return to Washington, D.C., The National Uniformity for Food Act (NUFA) awaits senators in the Committee on Health, Education, Labor, and Pensions. The Act amends the Federal Food, Drug, and Cosmetic Act (FFDCA) to prohibit any states from enacting laws and regulations that that are different from those contained in the FFDCA, including ones related to adulterated foods, unsafe food additives, and new animal drugs, or any notification requirement that provides for a warning concerning the food’s safety that is not identical to FFDCA provisions.
The Act is aimed directly at California’s Proposition 65, The Safe Drinking Water and Toxic Enforcement Act of 1986. Prop 65 requires businesses to place notifications on labels of products that contain chemicals known to cause cancer or birth defects. The state maintains a list of these chemicals, and the list has grown to approximately 750 chemicals today. Many supplements contain chemicals that are on the list and must be labeled accordingly if sold in California.
Prop 65, which is administered by the Office of Environmental Health Hazard Assessment (OEHHA), has become a bane of food and dietary supplement makers. The National Uniformity for Food Act would create preemption of state requirements for the FFDCA, but not completely. States would still be able to petition for an exemption or to establish a national standard regarding any requirement under FFDCA or the Fair Packaging and Labeling Act relating to food regulation if, in the opinion of the Secretary of Health and Human Services, the requirement: (1) protects an important public interest that would otherwise be unprotected; (2) would not cause any food to be in violation of any federal law; and (3) would not unduly burden interstate commerce.
NUFA has been proposed in prior congresses but appears closer to passage than ever before. State by state regulation simply does not work in today’s economy, and it is time for uniform requirements across the 5o states to take priority over individual state interests.
Update: California slams National Uniformity for Food bill.
About Joel Rothman
Joel B. Rothman represents clients in intellectual property infringement litigation involving patents, trademarks, copyrights, trade secrets, defamation, trade libel, unfair competition, unfair and deceptive trade practices, and commercial matters. Joel’s litigation practice also includes significant focus on electronic discovery issues such as e-discovery management and motion practice relating to e-discovery.
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