Henry Waxman

Mr. WAXMAN

Mr. WAXMAN. Mr. Speaker, after hearing the last speaker on the other side of the aisle on this rule, he claimed this is a bill that is well- balanced, thought through; it would lead to national regulations based on science. That all sounds well and good, but it is just not true. This bill has never had a day of hearings. We don't know all that is in this bill. You wonder why the Congress would do its work in this way: a bill that has never had a hearing in the committee, even though it has been around for three Congresses. Those who favor it have never made a record of why they think it is necessary. The opponents from most of the States, if you look at this map there are a few States we have not heard from, but almost all the States attorneys general and Governors and agriculture commissioners and the food and drug people in those States oppose it, but they have never been able to come in and tell the Congress why. So the other side has never had a chance, nor has our side of the aisle, to hear testimony and to make a record, and yet we are told this bill is well balanced. Let me point out that the proponents of this legislation have said a lot of different things. It has been almost like a covert legislative campaign. They have sent people in from the districts, from some trade association or other, and said to Members, this is a national uniformity bill. It is just going to clarify the law. It is going to require all the States to have the same rules so that we will not have the burden on interstate commerce. Well, they have never shown there is any burden on interstate commerce. But it sounded so good that many Members cosponsored the bill without fully understanding that this bill is going to overturn 200 State laws that protect our food supply. Why are we doing that? What is broken about our system of federalism that allows the States to pass laws to protect their own people? And now the proponents of this bill want States to come, hat in hand, to the Food and Drug Administration, a wonderful bureaucracy at the Federal level, not even elected people, and that agency will decide whether the State laws can continue in effect? They will have higher power than the States legislatures and Governors? That is not a well-balanced or well-thought-through piece of legislation. And now we are on the floor arguing a rule that would so severely limit the time for debate on all the amendments and this bill that you have to ask yourself: Why is this going on? What are they hiding from us? Why don't they want this bill to be held up to public scrutiny through hearings? And why won't they let this bill be fully debated on the floor of the House of Representatives by the people's elected Representatives? Why do they have to rush this through? Mr. Speaker, this is the early part of March. We have barely been in session. We have been meeting 2\1/2\ days out of each week as we go from recess in January to recess in February to recess in March. Let us have another day. Congress can do its work. We don't have to rush out to another CODEL or another junket. We ought to do our job and let people come in and tell us what they think of bills and not get steamrolled into something that no one has fully examined and that would repeal State laws. So let us vote against this legislation.

Mr. WAXMAN. Mr. Speaker, will the gentleman yield?

Mr. WAXMAN. The problem I have with what you are saying is that a State has to go to the Food and Drug Administration and argue that case, and they may then be allowed to continue their laws. But even if there is no Federal law on the subject, the States may be stopped from enforcing or even legislating in an area to give warnings or set up standards for the safety of the food. Why should States be required to go to a bureaucratic agency to have permission to do what the Constitution of the United States permits them to do, which is to police powers for the safety and health and well-being of their own citizens? You, particularly from Georgia, ought to appreciate States rights.

Mr. WAXMAN. Mr. Speaker, the standard in this bill is not sound science. The standard is for the FDA to decide if it unduly burdens interstate commerce to allow a State to have its own law. Now, I do not know how the FDA makes those kinds of decisions. They are a scientific agency, but they are going to make one on interstate commerce? And I suspect they will be influenced by the lobbyists, just like this whole process has been influenced by the special interests and the lobbyists that want to keep the States from protecting citizens in those States from unsafe and unhealthy food.

Mr. WAXMAN. Mr. Speaker, I think we have so little time to talk about this bill on the House floor, I wanted some of our colleagues to understand what kind of laws we are talking about: State laws dealing with adulterated food, emergency permit controls, unsafe food additives, unsafe color additives, new animal drugs, animal feeds, poisonous ingredients in food. These are laws that States have adopted over the years and they are going to be swept away. It is so inexplicable to me why we would want to do that. States currently carry out 80 percent of food safety protection. There is no evidence they have been acting irresponsibly or incompetently. And in many cases, the Federal Government has never gotten around to looking at these issues because they have deferred to the States on them. So now the State laws will be struck unless the Federal Government allows those State laws to stay in effect and that could mean, even though there is no Federal warning law, for example, that would take its place. We would have no law at the local or State level, or at the Federal level. I guess the purpose of some of this legislation is to keep the public from knowing about the harm that they may be exposed to in food. Now Mrs. Capps and a number of others are going to be offering an amendment, the Capps-Stupak-Eshoo-Waxman amendment, that would say that State laws that require notification of substances that may cause cancer and birth defects in reproductive health all ought to be permitted. I hope Members will vote for that amendment and vote against this bill.

Mr. WAXMAN. Mr. Speaker, will the gentleman yield?

Mr. WAXMAN. It gives 180 days for the FDA to act. They do not have the resources to do it, but they can simply say this is a burden on interstate commerce, the State law is gone. It does not mean that the State law stays in effect until the Federal Government establishes a national standard. It could strike the State law and have no national standard to replace it.

Mr. WAXMAN

Mr. WAXMAN. Mr. Chairman, if the people who are supporting this law were sincere, they would go to the Food and Drug Administration under current law and ask them to adapt standards all across the country on all of these issues. They don't have to wait until the State petitions them. The Food and Drug Administration can look at a problem now and say California has a law, Michigan has a law, those are good ideas. We are going to survey what the States are doing and make them apply all across the country. They could do that now. But this bill puts at risk all the State laws, and that is what is really behind this legislation, putting at risk all the State laws. Now, the Capps amendment is a combination of amendments that were offered in the Commerce Committee that had bipartisan support, very close to a majority, but not quite. If we had a hearing, maybe the others would been convinced. And what this amendment seeks to do is to say, all right, if this law goes into effect at least where the States have adopted warning labels on carcinogens, on reproductive toxins, on allergic reactions to sulfites, leave those State laws alone, do not wipe them out, because you would like to argue that there ought to be 50 laws, 50 States to have one law, which can be done now. Leave those laws alone. And it also says that when it comes to standards protecting children, let the States decide that issue. There are many children who suffer from cancer, and more and more we are learning that cancer is caused by environmental exposures. And one of the major environmental exposures is in food. If a parent, and all parents want to know this, having petitioned their State and have convinced their legislators to have a warning label that there is a carcinogen in the food, why should the Federal Government prevent that from happening, or have a standard that says they will not be allowed to have carcinogens or certain toxins in food that can harm children. Why should States be precluded from doing that? I find it disingenuous when the proponents of this bill say, I want the same thing as what these States are providing. I just want everybody to have it. The States do not have to act if the Federal Government has acted. If the Federal Government has acted for everyone, then there is no need for State laws; but if the Federal Government has not acted, the States ought to be able to act on their own in this area. So the Capps amendment that is sponsored by many of us is narrow, and it simply says it will allow the warning labels if the States determine them for carcinogens, reproductive toxins and allergic reactions. Let the States act where they are trying to protect children from harmful substances in food. I urge support for the Capps amendment.

Mr. WAXMAN. Mr. Chairman, if no one rises in opposition to the amendment, I would like to claim the time, for purposes of debate, by unanimous consent.

Mr. WAXMAN. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, it is claimed that the Barton amendment preserves State and local authorities to act when the Federal Government has not. Unfortunately, the extent of the amendment does not support this statement. The amendment merely provides that States may enforce identical requirements to Federal requirements. This is a terrible policy. Sixteen years ago, the Food and Drug Administration learned that there were cancer-causing chemicals in soft drinks way above levels that would be permitted in drinking water. Once the soft drink industry promised to address the problem, the FDA did nothing. Under the legislation the House considers today, the States' hands will be tied, even while the FDA continues to do nothing. The other purpose of this amendment is that it would allow the States to regulate in the area of dietary supplements. The Food and Drug Administration can regulate in that area, but the States could go even further. Now, I am for States rights, and so if a State wants to go further in the area of dietary supplements, I should not object, although I do not know whether the people who want this bill think that dietary supplements ought to be treated differently than the other foods. Why should we allow the States to regulate in the area of dietary supplements but not in regular food? The distinction does not make a lot of sense. I do not oppose this amendment. I sought the time for the purposes of debate, but I think the point I would draw to the attention of my colleagues is why are we treating dietary supplements different from other foods? The States have historically dealt in this area, and the States ought to be permitted to deal not just in dietary supplements, but with all food under the police powers that are granted to every State to act to protect their own citizens. So I want Members to know that this amendment is going to treat dietary supplements in a harsher way, by letting the States act, than we will with regular foods where it comes to a tolerance or a warning label. Mr. Chairman, I reserve the balance of my time.

Mr. WAXMAN. Mr. Chairman, I ask unanimous consent that I be able to take the time and debate on this amendment.

Mr. WAXMAN. Mr. Chairman, I yield myself the balance of my time to enter into that last point that was made. A State may act if they act in a way that is identical to the Federal action. Great. But if a State wants to act where the Federal Government has not acted, the States will be blocked, or may be blocked, from acting at all. I think that illustrates the problem with this legislation. The State authority is stopped, and if the Federal Government doesn't act and the State can't act, then there will be no warning label. There will be no action at all on either the State or the Federal level to protect the public, even though the State would like to protect its own citizens. That illustrates to me the basic flaw in this whole bill that is before us. And maybe it is why we never had a day of hearings on it and it is being rushed through the House of Representatives without adequate debate. But let me just make that point as clearly as possible. Because sometimes you hear over and over again, we will have a stronger Federal law and there will be one uniform Federal law. Well, this will allow one uniform nonFederal law to preempt the States, and they will be identical because they will both say nothing to give the consumers the information they ought to have about the problems in food that could cause cancer or other medical problems or health problems, such as PCBs in shellfish, such as mercury in some other foods, such as carcinogens in something else. The public won't even be empowered to protect themselves if they want to. It is ``buyer beware,'' but at least let the buyer have some information and let them then make that decision. So I don't object to this amendment, but I do object to the bill, and this amendment does not cure the fundamental problems with this legislation. Mr. Chairman, I yield back the balance of my time.

Mr. WAXMAN. Mr. Chairman, I yield myself such time as I may consume. This bill requires a State to petition the Food and Drug Administration to see if the Food and Drug Administration will allow the State to continue with its law. Now, many of these laws are dealing with carcinogens and reproductive toxins, very, very serious matters, and the States feel the public ought to be advised about that. This amendment, however, provides an expedited review. Well, the Congressional Budget Office has said that this is going to cost $100 million over 5 years, and that is to review 200 State petitions, because there are 200 State laws that are going to be wiped out. The Congressional Budget Office says they do not think the FDA will comply in time. So the FDA is going to be mandated to get their review done in an expedited way and it is going to cost us over $100 million, but they are not going to comply. Well, that is why the States attorneys general have contacted us and they say that this bill is going to create a whole new Federal bureaucracy. Imagine that, Republicans who are sponsoring this bill, and Democrats who have joined with them, who I don't think both sides of the aisle understood the consequences of this bill; that it takes away the States rights to enact legislation in areas of carcinogens and reproductive toxins and other areas where they think the public health and safety may be at stake, it takes away the States rights to give it to a Federal bureaucracy, and it enhances that Federal bureaucracy with additional burdens but creates no more funding to do that job. Is this what we have always expected out of Congress; creating a new bureaucracy to act in place of State duly elected governments? I just think this bill, if people will examine it carefully, can't stand the light of day. And I guess that is why we have never had a hearing on it. No one has ever been able to get the pros and the cons. We have no record to substantiate that legislation to start with. And this amendment, although it is hard to oppose an amendment that says we are going to have an expedited review, although the bill provides for a 180-day review, nobody who has looked at it carefully, especially the Congressional Budget Office, thinks it will make a difference because they are never going to get around to it. I guess the way to handle it is the Food and Drug Administration can say, very quickly, no, that State law will not be allowed. We won't let them have those warnings for their people. We will just overturn the State law. That will be what they will have to do if they have to do it in an expedited way, especially if they are hearing from special interest groups that want the laws at the State level to be overturned. But let me just add one other point. We are talking about 200 State laws that are on the books now. But what about other problems in the future that States may find out about that may even be peculiar to that State? They are not going to be looking at that issue any longer because they know that the Federal Government is now preempting the field. But the Federal Government, by preempting the field, it doesn't mean that they are looking at the problem and trying to address it. So there is a huge vacuum that will be created if this bill becomes law, and that is why I sought the time and I wanted to make this clarification. Mr. Chairman, should I have any time left, I want to reserve the balance of it.

Mr. WAXMAN. Mr. Chairman, I reserve the balance of my time.

Mr. WAXMAN. Mr. Chairman, I yield myself such time as I may consume. I want to point out that there are two petitions. One is a petition by a State to allow its law to stay in effect. The second provision in the bill allows a State to petition to say the Federal Government should have one uniform law that ought to be the same as that State's. Well, this provision that is before us will have an expedited review of the States' petitions. Pesticide spraying after harvest disclosure, that is a Maine law requiring disclosure; postharvest spraying of produce with pesticides. I have no idea what the reason was for that law, but Maine people thought it worthwhile because of pesticide spraying and, I guess, the residue of pesticides. I suppose that should have an expedited review. We have disclosure of fish, whether it is farm-raised or wild. There is a law in Alaska dealing with salmon; in Arkansas, Louisiana and Mississippi dealing with catfish. Certain farm-raised fish may contain elevated levels of PCBs and other contaminants. Well, those State laws may not be allowed to continue. The FDA is going to have to decide that. There are 50 State milk safety laws. They are different laws. Each State adopted the law it thinks is best. Each State would have to petition whether it can continue with the law that it adopted. Now, an expedited review sounds like a good idea because we would like them to review them carefully so the States can have a decision, but you know an expedited review can also mean that expedite it, and the FDA will say ``no'' as quickly as possible in order to expedite that review. I would rather have them have a thorough opportunity to review the laws based on the science, but they do not have to make their decision based on science. They can just decide that any State law, if a business has to comply with a State law, it means that in one State they have to have different warning labels or different tolerance standards than in other States. That might interfere with interstate commerce, so they might just strike all of the laws. I do not want to push them on an expedited basis to strike all these laws because that could be what an agency, a bureaucracy, would think is the wisest thing to do in order to meet the expedited time frame. So I think Members ought to be aware of the other side of the coin when they say we want these laws reviewed carefully. The other point is the Barton amendment dealing with dietary supplements will not even have a State have to go to the Food and Drug Administration if the State wants to regulate more in the area of dietary supplements. It still is perplexing to me why that area ought to be singled out to be treated differently than other food products. Why should a warning label that a State wants to put on a food which may be a carcinogen or it may be a reproductive toxin, why a State law in that area, if it deals with a food product that is probably going to be used by far more people, should require a State to have to go and get a petition to the Food and Drug Administration to let that law stay in effect? But if they have a warning label that a dietary supplement can cause cancer, that warning label will not be reviewed by the FDA. So we have these discrepancies that Members ought to understand are at stake in this legislation which has not been thoroughly reviewed. On that basis I think we ought to give it much more scrutiny than we are being allowed to do today. Mr. Chairman, I reserve the balance of my time.

Mr. WAXMAN. Mr. Chairman, I yield 2 minutes to the gentlewoman from California (Ms. Eshoo).

Mr. WAXMAN

Mr. WAXMAN. Madam Chairman, will the gentleman yield?

Mr. WAXMAN. Madam Chairman, I am now proud to yield 3 minutes to the gentlewoman from Connecticut (Ms. DeLauro), who is the chairman of the Appropriations subcommittee that deals with the Food, Drug, and Cosmetic Agency.

Mr. WAXMAN. Mr. Chairman, I yield for the purpose of making a unanimous consent request to the gentleman from Texas (Mr. Gene Green). (Mr. GENE GREEN of Texas asked and was given permission to revise and extend his remarks.)

Mr. WAXMAN. Mr. Chairman, I yield myself 4 minutes. Mr. Chairman, today the House takes up legislation that would overturn 200 State laws that protect our food supply. Some of them are in labeling and some actually deal with the substance of what can be in food in the State. A year ago, the House passed legislation to try to dictate private end-of-life decisions of Terry Schiavo and her family. This intrusion of the Federal Government into personal decisions was, I think, universally condemned, and yet today the House is once again trying to usurp powers that do not belong in Washington. Why are they doing it? Because some special interests want to overturn State laws that they never liked. The only difference is that it is the authority of State and local governments to protect against food-borne hazards that is now under assault. In California, for example, we have candies that come in from Mexico that have lead in them. So our legislature passed a law regulating lead in candy. It is a sensible idea. Lead can cause brain damage to children. Yet the authors of this bill that is before us today, without holding any hearings, want to preempt that law. Now, their argument is, well, we ought to have a Federal law that does the same thing. If we ought to have a Federal law to do the same thing, why has the Federal Government not done that? The Federal Government has not been involved in these areas. They have been in the area of State control. In Maine there is a law that requires consumers to be warned about the dangers of eating smoked alewives. This is not a problem in California, but apparently it is one in Maine. Yet again it would be preempted. I could go on and on. Wisconsin knows a lot about cheese. It has special labeling requirements for cheese. Florida has special labeling requirements for citrus. Mississippi and Louisiana have special rules for differentiating farm-bred from wild catfish, and Alaska has similar rules for salmon. Ten coastal States have special laws protecting their residents from contaminated shell fish, and all 50 States have laws ensuring the safety of milk. And all of them would be preempted. The arrogance of the House of Representatives appears to know no bounds. The attitude seems to be that all knowledge resides in Washington and all power should as well. This is dangerous legislation. I know the proponents are going to say to you, well, they can appeal to the Food and Drug Administration to allow them at the State level to continue with their laws. Can you imagine that? The States, the sovereign States of this country, have to go hat in hand to a Federal bureaucracy to allow them to continue laws that their people accepted, passed under their rules, the State legislature and the Governors, to protect their population? The FDA cannot protect the food supply all by itself. The agency is underfunded and overworked, and it is failing even at the core mission of protecting consumers from dangerous drugs. You do not have to take my word for it. Just yesterday, 37 State Attorneys General, Republicans and Democrats, sent a letter to Congress opposing this radical legislation. They stated: ``We write to urge you to oppose the National Uniformity For Food Act which undercuts States' rights and consumer protection.'' And they go on to say: ``State and local governments are often the first line of defense when problems emerge. Prohibiting State and local leadership and action in this area is a serious mistake.'' We have also had opposition from the National Association of the State Departments of Agriculture and the Association of the Food and Drug Officials. These food safety experts know that passage of this legislation would create havoc and endanger families. For years, I have heard my Republicans say, let us allow the States to do what they need to do to protect their people. I agree with them. Do not bring everything to Washington. Madam Chairman, I reserve the balance of my time.

Mr. WAXMAN. Madam Chairman, I yield myself such time as I may consume. If the Federal Government wanted one uniform standard and wanted to preempt the States from different standards, they could do it. They could do it, but what this bill would do is to preempt the States from even going forward on their own initiative to look at problems and have a standard or label in their State. The problem has never been demonstrated that there is an issue where there are too many State differences. The problem is that the Federal Government has not been involved in this area. So if we can get the States out of it and the Federal Government out of it, then processors can just sell their food and not worry about having to meet any standard anywhere. In California, we have a law that says you must designate if some harmful substance is in food. The consequence of that warning label means that the food producers make sure they do not have to put a warning label on because they get rid of any toxic substance that might be in their product. That is a good result of that requirement. It would be preempted by this law. Madam Chairman, I yield 3 minutes to the gentlewoman from California (Ms. Eshoo), my colleague and a very important member of the Energy and Commerce Committee.

Mr. WAXMAN. Madam Chairman, I yield 6 minutes to the gentleman from Michigan (Mr. Stupak), an important Member of the Energy and Commerce Committee, who has been very active on FDA issues for a number of years.

Mr. WAXMAN. Madam Chairman, I think what the gentleman is illustrating is so important, because the sponsors of this bill said we need the Federal Government to protect the health of people all over the country. So let us have one uniform standard. Well, right now, the FDA could adopt that standard and stop the use of carbon monoxide as a food additive and as a preserver of meat, but they have not acted. So if a State wants to act, why should we tell them they cannot act when the FDA hasn't done anything at the Federal level? I think that is the point you are making. Let the States, if the Federal Government fails, sometimes because they have lobbyists up here who are more powerful, let the States at least be able to protect their own citizens to pass the laws they think are appropriate.

Mr. WAXMAN. You would not, however, want the Federal Government to legislate in every area that any State thinks ought to be done in their State?

Mr. WAXMAN

Mr. WAXMAN. Mr. Speaker, I thank the gentlewoman very much for yielding time to me. It is extraordinary that she let me go ahead of her, and I appreciate it very much because of her accommodation of my schedule. This bill is the most sweeping change in decades to our Nation's efforts to protect the food supply. H.R. 4167 is a disaster waiting to happen. This legislation could overturn 200 State laws, laws that the American people rely on every day to ensure the safety of the food they eat and to ensure that they know what they are buying: laws that ensure that the shellfish they buy is not tainted; laws that let a pregnant woman know what foods can increase the risk of birth defects; laws that could inform consumers whether fish have high levels of cancer-causing PCBs; and laws that ensure the safety of our milk. The opposition to this bill is strong, and it is growing stronger. Last night, 37 State attorneys general, Republicans and Democrats alike, announced their opposition to the bill. They join the opposition of dozens of public health, environmental and consumer groups. Florida, Georgia, New York, Wisconsin, and Illinois have all written to Congress opposing the legislation. The National Association of State Departments of Agriculture and the National Association of Food Drug Officials strongly oppose this bill as well. I hope that next week we will be able to offer some amendments to the bill. Since there has never been a day of hearings on the legislation in committee, I think there ought to be an open rule. One amendment that I would like to support is the Capps-Eshoo-Stupak- Waxman amendment, and I think it must be adopted by this House. It would allow States to take the necessary steps so that consumers will be told of food that contains cancer-causing substances, developmental toxins, sulfites and reproductive toxins. It will also let States take action to protect the health of their children. Secondly, this bill will undermine our Nation's defenses against bioterrorism, according to State and local officials, and we are proposing that this bill not handcuff the first responders who deal with food safety issues every day. The amendment we will be offering will help preserve the authorities of the governors and State legislatures to establish and maintain a food safety system that can be responsive to the threats that we face. I am stunned by so many of my Republican colleagues, even the gentleman that spoke on the Republican side of the aisle from the State of Georgia, suggesting that States should not have the right to go ahead and adopt food safety and labeling laws unless the FDA, a bureaucracy in the Federal Government, allows them to do so. The States have always had this constitutional authority. The States should have this right. I have been told so many times over the decades that Washington does not and should not have one-size-fits-all for everybody. Let us let States exercise their rights to protect their own people and not preempt them.