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NUTRITION LABELING STANDARDS: FEDERAL PREEMPTION

Executive Summary

NUTRITION LABELING STANDARDS: FEDERAL PREEMPTION of state laws is established in the Nutrition Labeling Act (HR 3562) with some restrictions. Under the bill, FDA standards for food health claims and mandatory nutrition labeling must be uniform nationally 2-1/2 years after enactment. However, according to a last-minute compromise worked out by Sens. Hatch (R-Utah) and Metzenbaum (D-Ohio), federal preemption will not apply to label warning statements mandated by states. Discussion the preemption provisions on the Senate floor, Hatch maintained that "it is wrong to permit each of the 50 states to require manufacturers of 20,000 packaged food items to display different health and diet information sold throughout the country. And it is wrong to burden manufacturers with the fear of potentially 50 different lawsuits from 50 different state attorneys general." The compromise appears to exempt label warnings requirements under Proposition 65 in California. Other state-imposed label warnings, such as a statement regarding possible allergic reactions to food, would also be exempt from conforming to federal standards. In addition, states may petition for exemption from national uniformity if the state law would not unduly burden interstate commerce or if the state law is designed to address a particular need not met by federal standards, according to the bill. Nevertheless, state label warning requirements may be preempted by authority of the Constitution, another statutory provision or agency action. The bill has been presented to the White House for the President's signature. It passed the Senate with amendments Oct. 24 and the House agreed to the amended version of the bill on Oct. 26. The bill requires that a claim that characterizes the relationship of one or more nutrients to disease may be allowed only if the claim is authorized by FDA as scientifically valid, and if other nutrients are not present in amounts that increase the risk of health-related conditions or disease ("The Pink Sheet" Oct. 29, T&G-3). FDA regulations implementing the legislation must be promulgated in 24 months and be effective six months later.
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