I 

108TH CONGRESS 

1ST SESSION H. R. 2699

To amend the Federal Food, Drug, and Cosmetic Act to provide for uniform 

food safety warning notification requirements, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 10, 2003

Mr. BURR (for himself, Mr. GILLMOR, Ms. MCCARTHY of Missouri, Mr. 

OTTER, Mr. BRADLEY of New Hampshire, Ms. DUNN, Mr. DEAL of 

Georgia, Mr. PETRI, Mr. THOMPSON of Mississippi, Mr. TERRY, Mr. 

ISSA, Mr. TOWNS, Mr. BOEHNER, Mr. FOLEY, Mr. SHUSTER, Mr. 

KOLBE, and Mr. CRENSHAW) introduced the following bill; which was referred to the Committee on Energy and Commerce 

A BILL

To amend the Federal Food, Drug, and Cosmetic Act to 

provide for uniform food safety warning notification requirements, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘National Uniformity 

3 for Food Act of 2003’’. 

4 SEC. 2. NATIONAL UNIFORMITY FOR FOOD. 

5 (a) NATIONAL UNIFORMITY.—Section 403A(a) of the 

6 Federal Food, Drug, and Cosmetic Act (21 U.S.C. 343–

7 1(a)) is amended—

8 (1) in paragraph (4), by striking ‘‘or’’ at the 

9 end; 

10 (2) in paragraph (5), by striking the period and 

11 inserting ‘‘, or’’; 

12 (3) by inserting after paragraph (5) the fol13 lowing: 

14 ‘‘(6) any requirement for a food described in 

15 section 402(a)(1), 402(a)(2), 402(a)(6), 402(a)(7), 

16 402(c), 404, 406, 409, 512, or 721(a), that is not 

17 identical to the requirement of such section.’’; and 

18 (4) by adding at the end the following: ‘‘For 

19 purposes of paragraph (6) and section 403B, the 

20 term ‘identical’ means that the language under the 

21 laws of a State or a political subdivision of a State 

22 is substantially the same language as the comparable 

23 provision under this Act and that any differences in 

24 language do not result in the imposition of materi25 ally different requirements.’’. 
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1 (b) UNIFORMITY IN FOOD SAFETY WARNING NOTI2 FICATION REQUIREMENTS.—Chapter IV of such Act (21 

3 U.S.C. 341 et seq.) is amended—

4 (1) by redesignating sections 403B and 403C 

5 as sections 403C and 403D, respectively; and 

6 (2) by inserting after section 403A the fol7 lowing new section: 

8 ‘‘SEC. 403B. UNIFORMITY IN FOOD SAFETY WARNING NOTI9 FICATION REQUIREMENTS. 

10 ‘‘(a) UNIFORMITY REQUIREMENT.—

11 ‘‘(1) IN GENERAL.—Except as provided in sub12 sections (c) and (d), no State or political subdivision 

13 of a State may, directly or indirectly, establish or 

14 continue in effect under any authority any notifica15 tion requirement for a food that provides for a warn16 ing concerning the safety of the food, or any compo17 nent or package of the food, unless such a notifica18 tion requirement has been prescribed under the au19 thority of this Act and the State or political subdivi20 sion notification requirement is identical to the noti21 fication requirement prescribed under the authority 

22 of this Act. 

23 ‘‘(2) DEFINITIONS.—For purposes of paragraph 

24 (1)— 
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1 ‘‘(A) the term ‘notification requirement’ in2 cludes any mandatory disclosure requirement 

3 relating to the dissemination of information 

4 about a food by a manufacturer or distributor 

5 of a food in any manner, such as through a 

6 label, labeling, poster, public notice, advertising, 

7 or any other means of communication, except 

8 as provided in paragraph (3); 

9 ‘‘(B) the term ‘warning’, used with respect 

10 to a food, means any statement, vignette, or 

11 other representation that indicates, directly or 

12 by implication, that the food presents or may 

13 present a hazard to health or safety; and 

14 ‘‘(C) a reference to a notification require15 ment that provides for a warning shall not be 

16 construed to refer to any requirement or prohi17 bition relating to food safety that does not in18 volve a notification requirement. 

19 ‘‘(3) CONSTRUCTION.—Nothing in this section 

20 shall be construed to prohibit a State from con21 ducting the State’s notification, disclosure, or other 

22 dissemination of information, or to prohibit any ac23 tion taken relating to a mandatory recall or court in24 junction involving food adulteration under a State
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1 statutory requirement identical to a food adultera2 tion requirement under this Act. 

3 ‘‘(b) REVIEW OF EXISTING STATE REQUIRE4 MENTS.—

5 ‘‘(1) EXISTING STATE REQUIREMENTS; DEFER6 RAL.—Any requirement that—

7 ‘‘(A)(i) is a State notification requirement 

8 that expressly applies to a specified food or food 

9 component and that provides for a warning de10 scribed in subsection (a) that does not meet the 

11 uniformity requirement specified in subsection 

12 (a); or 

13 ‘‘(ii) is a State food safety requirement de14 scribed in section 403A(6) that does not meet 

15 the uniformity requirement specified in that 

16 paragraph; and 

17 ‘‘(B) is in effect on the date of enactment 

18 of the National Uniformity for Food Act of 

19 2003, 

20 shall remain in effect for 180 days after that date 

21 of enactment. 

22 ‘‘(2) STATE PETITIONS.—With respect to a 

23 State notification or food safety requirement that is 

24 described in paragraph (1), the State may petition 

25 the Secretary for an exemption or a national stand-
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1 ard under subsection (c). If a State submits such a 

2 petition within 180 days after the date of enactment 

3 of the National Uniformity for Food Act of 2003, 

4 the notification or food safety requirement shall re5 main in effect until the Secretary takes all adminis6 trative action on the petition pursuant to paragraph 

7 (3), and the time periods and provisions specified in 

8 paragraph (3) shall apply in lieu of the time periods 

9 and provisions specified in subsection (c)(3) (but not 

10 the time periods and provisions specified in sub11 section (d)(2)). 

12 ‘‘(3) ACTION ON PETITIONS.— 

13 ‘‘(A) PUBLICATION.—Not later than 270 

14 days after the date of enactment of the Na15 tional Uniformity for Food Act of 2003, the 

16 Secretary shall publish a notice in the Federal 

17 Register concerning any petition submitted 

18 under paragraph (2) and shall provide 180 days 

19 for public comment on the petition. 

20 ‘‘(B) TIME PERIODS.—Not later than 360 

21 days after the end of the period for public com22 ment, the Secretary shall take final agency ac23 tion on the petition. 

24 ‘‘(C) JUDICIAL REVIEW.—The failure of 

25 the Secretary to comply with any requirement 
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1 of this paragraph shall constitute final agency 

2 action for purposes of judicial review. If the 

3 court conducting the review determines that the 

4 Secretary has failed to comply with the require5 ment, the court shall order the Secretary to 

6 comply within a period determined to be appro7 priate by the court. 

8 ‘‘(c) EXEMPTIONS AND NATIONAL STANDARDS.—

9 ‘‘(1) EXEMPTIONS.—Any State may petition 

10 the Secretary to provide by regulation an exemption 

11 from paragraph (6) or (7) of section 403A(a) or 

12 subsection (a), for a requirement of the State or a 

13 political subdivision of the State. The Secretary may 

14 provide such an exemption, under such conditions as 

15 the Secretary may impose, for such a requirement 

16 that— 

17 ‘‘(A) protects an important public interest 

18 that would otherwise be unprotected, in the ab19 sence of the exemption; 

20 ‘‘(B) would not cause any food to be in 

21 violation of any applicable requirement or prohi22 bition under Federal law; and 

23 ‘‘(C) would not unduly burden interstate 

24 commerce, balancing the importance of the pub-
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1 lic interest of the State or political subdivision 

2 against the impact on interstate commerce. 

3 ‘‘(2) NATIONAL STANDARDS.—Any State may 

4 petition the Secretary to establish by regulation a 

5 national standard respecting any requirement under 

6 this Act or the Fair Packaging and Labeling Act 

7 (15 U.S.C. 1451 et seq.) relating to the regulation 

8 of a food. 

9 ‘‘(3) ACTION ON PETITIONS.—

10 ‘‘(A) PUBLICATION.—Not later than 30 

11 days after receipt of any petition under para12 graph (1) or (2), the Secretary shall publish 

13 such petition in the Federal Register for public 

14 comment during a period specified by the Sec15 retary. 

16 ‘‘(B) TIME PERIODS FOR ACTION.—Not 

17 later than 60 days after the end of the period 

18 for public comment, the Secretary shall take 

19 final agency action on the petition. If the Sec20 retary is unable to take final agency action on 

21 the petition during the 60-day period, the Sec22 retary shall inform the petitioner, in writing, 

23 the reasons that taking the final agency action 

24 is not possible, the date by which the final 

25 agency action will be taken, and the final agen-
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1 cy action that will be taken or is likely to be 

2 taken. In every case, the Secretary shall take 

3 final agency action on the petition not later 

4 than 120 days after the end of the period for 

5 public comment. 

6 ‘‘(4) JUDICIAL REVIEW.—The failure of the 

7 Secretary to comply with any requirement of this 

8 subsection shall constitute final agency action for 

9 purposes of judicial review. If the court conducting 

10 the review determines that the Secretary has failed 

11 to comply with the requirement, the court shall 

12 order the Secretary to comply within a period deter13 mined to be appropriate by the court. 

14 ‘‘(d) IMMINENT HAZARD AUTHORITY.—

15 ‘‘(1) IN GENERAL.—A State may establish a re16 quirement that would otherwise violate paragraph 

17 (6) or (7) of section 403A(a) or subsection (a), if— 

18 ‘‘(A) the requirement is needed to address 

19 an imminent hazard to health that is likely to 

20 result in serious adverse health consequences or 

21 death; 

22 ‘‘(B) the State has notified the Secretary 

23 about the matter involved and the Secretary 

24 has not initiated enforcement action with re25 spect to the matter;
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1 ‘‘(C) a petition is submitted by the State 

2 under subsection (c) for an exemption or na3 tional standard relating to the requirement not 

4 later than 30 days after the date that the State 

5 establishes the requirement under this sub6 section; and 

7 ‘‘(D) the State institutes enforcement ac8 tion with respect to the matter in compliance 

9 with State law within 30 days after the date 

10 that the State establishes the requirement 

11 under this subsection. 

12 ‘‘(2) ACTION ON PETITION.—

13 ‘‘(A) IN GENERAL.—The Secretary shall 

14 take final agency action on any petition sub15 mitted under paragraph (1)(C) not later than 7 

16 days after the petition is received, and the pro17 visions of subsection (c) shall not apply to the 

18 petition. 

19 ‘‘(B) JUDICIAL REVIEW.—The failure of 

20 the Secretary to comply with the requirement 

21 described in subparagraph (A) shall constitute 

22 final agency action for purposes of judicial re23 view. If the court conducting the review deter24 mines that the Secretary has failed to comply 

25 with the requirement, the court shall order the 
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1 Secretary to comply within a period determined 

2 to be appropriate by the court. 

3 ‘‘(3) DURATION.—If a State establishes a re4 quirement in accordance with paragraph (1), the re5 quirement may remain in effect until the Secretary 

6 takes final agency action on a petition submitted 

7 under paragraph (1)(C). 

8 ‘‘(e) NO EFFECT ON PRODUCT LIABILITY LAW.—

9 Nothing in this section shall be construed to modify or 

10 otherwise affect the product liability law of any State. 

11 ‘‘(f) NO EFFECT ON IDENTICAL LAW.—Nothing in 

12 this section relating to a food shall be construed to prevent 

13 a State or political subdivision of a State from estab14 lishing, enforcing, or continuing in effect a requirement 

15 that is identical to a requirement of this Act, whether or 

16 not the Secretary has promulgated a regulation or issued 

17 a policy statement relating to the requirement. 

18 ‘‘(g) NO EFFECT ON CERTAIN STATE LAW.—Noth19 ing in this section or section 403A relating to a food shall 

20 be construed to prevent a State or political subdivision of 

21 a State from establishing, enforcing, or continuing in ef22 fect a requirement relating to—

23 ‘‘(1) freshness dating, open date labeling, grade 

24 labeling, a State inspection stamp, religious dietary 

25 labeling, organic or natural designation, returnable 
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1 bottle labeling, unit pricing, or a statement of geo2 graphic origin; or 

3 ‘‘(2) a consumer advisory relating to food sani4 tation that is imposed on a food establishment, or 

5 that is recommended by the Secretary, under part 

6 3–6 of the Food Code issued by the Food and Drug 

7 Administration and referred to in the notice pub8 lished at 64 Fed. Reg. 8576 (1999) (or any cor9 responding similar provision of such a Code). 

10 ‘‘(h) DEFINITIONS.—In section 403A and this sec11 tion: 

12 ‘‘(1) The term ‘requirement’, used with respect 

13 to a Federal action or prohibition, means a manda14 tory action or prohibition established under this Act 

15 or the Fair Packaging and Labeling Act (15 U.S.C. 

16 1451 et seq.), as appropriate, or by a regulation 

17 issued under or by a court order relating to, this Act 

18 or the Fair Packaging and Labeling Act, as appro19 priate. 

20 ‘‘(2) The term ‘petition’ means a petition sub21 mitted in accordance with the provisions of section 

22 10.30 of title 21, Code of Federal Regulations, con23 taining all data and information relied upon by the 

24 petitioner to support an exemption or a national 

25 standard.’’. 
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1 (c) CONFORMING AMENDMENT.—Section 403A(b) of 

2 such Act (21 U.S.C. 343–1(b)) is amended by adding after 

3 and below paragraph (3) the following: 

4 ‘‘The requirements of paragraphs (3) and (4) of section 

5 403B(c) shall apply to any such petition, in the same man6 ner and to the same extent as the requirements apply to 

7 a petition described in section 403B(c).’’.

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