I

106TH CONGRESS

1ST SESSION H. R. 2129

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

JUNE 10, 1999

Mr. BURR of North Carolina (for himself, Mr. GREENWOOD, Mr. HALL of

Texas, Mr. UPTON, Mr. STRICKLAND, Mr. EHRLICH, Mr. TOWNS, Mr.

SHADEGG, Mr. BOUCHER, Mr. PICKERING, Mr. FORD, Mr. SHIMKUS, Mr.

WYNN, and Mr. BLUNT) introduced the following bill; which was referred

to the Committee on 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,

3 SECTION 1. SHORT TITLE.

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

5 for Food Act of 1999’’.
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1 SEC. 2. NATIONAL UNIFORMITY FOR FOOD.

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

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

4 1(a)) is amended—

5 (1) by striking ‘‘or’’ at the end of paragraph

6 (4);

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

8 inserting a comma; and

9 (3) by adding at the end the following:

10 ‘‘(6) any requirement for the labeling of food

11 described in section 403(j), or 403(s), that is not

12 identical to the requirement of such section, or

13 ‘‘(7) any requirement for a food described in

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

15 402(c), 402(f), 402(g), 404, 406, 408, 409, 512, or

16 721(a), that is not identical to the requirement of

17 such section.’’.

18 (b) UNIFORMITY IN FOOD SAFETY WARNING NOTI19 FICATION REQUIREMENTS.—Chapter IV of such Act (21

20 U.S.C. 341 et seq.) is amended—

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

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

23 (2) by inserting after section 403A the fol24 lowing new section:
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1 ‘‘SEC. 403B. UNIFORMITY IN FOOD SAFETY WARNING NOTI2 FICATION REQUIREMENTS.

3 ‘‘(a) UNIFORMITY REQUIREMENT.—

4 ‘‘(1) IN GENERAL.—Except as provided in sub5 sections (b) and (c), no State or political subdivision

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

7 continue in effect under any authority any notifica8 tion requirement for a food that provides for a warn9 ing concerning the safety of the food, or any compo10 nent or package of the food, unless such a notifica11 tion requirement has been prescribed under the au12 thority of this Act and the State or political subdivi13 sion notification requirement is identical to the noti14 fication requirement prescribed under the authority

15 of this Act.

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

17 (1)—

18 ‘‘(A) the term ‘notification requirement’ in19 cludes any mandatory disclosure requirement

20 relating to the dissemination of information

21 about a food by a manufacturer or distributor

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

23 label, labeling, poster, public notice, advertising,

24 or any other means of communication, but not

25 relating to notification, disclosure, or other dis-
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1 semination of information by a State or political

2 subdivision;

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

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

5 other representation that indicates, directly or

6 by implication, that the food presents or may

7 present a hazard to health or safety; and

8 ‘‘(C) a reference to a notification require9 ment that provides for a warning shall not be

10 construed to refer to any requirement or prohi11 bition relating to food safety that does not in12 volve a notification requirement.

13 ‘‘(b) EXEMPTIONS AND NATIONAL STANDARDS.—

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

15 the Secretary to provide by regulation, after pro16 viding notice and an opportunity for written and

17 oral presentation of views during a public comment

18 period described in paragraph (3), an exemption

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

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

21 political subdivision of the State. The Secretary may

22 provide such an exemption, under such conditions as

23 the Secretary may impose, for such a requirement

24 that—
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1 ‘‘(A) protects an important public interest

2 that would otherwise be unprotected, in the ab3 sence of the exemption;

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

5 violation of any applicable requirement or prohi6 bition under Federal law; and

7 ‘‘(C) would not unduly burden interstate

8 commerce, balancing the importance of the pub9 lic interest of the State or political subdivision

10 against the impact on interstate commerce.

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

12 petition the Secretary to establish by regulation,

13 after providing notice and an opportunity for written

14 and oral presentation of views during a public com15 ment period described in paragraph (3), a national

16 standard respecting any requirement under this Act

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

18 1451 et seq.) relating to the regulation of a food.

19 ‘‘(3) ACTION ON PETITIONS.—

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

21 days after receipt of any petition under para22 graph (1) or (2), the Secretary shall publish

23 such petition in the Federal Register for public

24 comment during a period specified by the Sec25 retary.
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1 ‘‘(B) TIME PERIODS FOR ACTION.—Not

2 later than 60 days after the end of the period

3 for public comment, the Secretary shall take ac4 tion on the petition. If the Secretary is unable

5 to take action on the petition during the 60-day

6 period, the Secretary shall inform the peti7 tioner, in writing, the reasons that taking the

8 action is not possible, the date by which the ac9 tion will be taken, and the action that will be

10 taken or is likely to be taken. In every case, the

11 Secretary shall take action on the petition not

12 later than 120 days after the end of the period

13 for public comment.

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

15 Secretary to comply with any requirement of this

16 subsection shall constitute final agency action for

17 purposes of judicial review. If the court conducting

18 the review determines that the Secretary has failed

19 to comply with the requirement, the court shall

20 order the Secretary to comply within a period deter21 mined to be appropriate by the court.

22 ‘‘(c) IMMINENT HAZARD AUTHORITY.—

23 ‘‘(1) IN GENERAL.—A State may establish a re24 quirement that would otherwise violate paragraph

25 (6) or (7) of section 403A(a) or subsection (a), if—
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1 ‘‘(A) the requirement is needed to address

2 an imminent hazard to health that is likely to

3 result in serious adverse health consequences or

4 death;

5 ‘‘(B) the State has informed the Secretary

6 about the matter involved and the Secretary

7 has not initiated enforcement or other regu8 latory action with respect to the matter;

9 ‘‘(C) a petition is submitted by the State

10 under subsection (b) for an exemption or na11 tional standard relating to the requirement not

12 later than the date that the State establishes

13 the requirement under this subsection; and

14 ‘‘(D) the State institutes enforcement ac15 tion with respect to the matter in compliance

16 with State law following submission of such pe17 tition.

18 ‘‘(2) ACTION ON PETITION.—

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

20 take action on any petition submitted under

21 paragraph (1)(C) not later than 7 days after

22 the petition is received, notwithstanding sub23 section (b)(3)(B) and the public comment re24 quirements of subsection (b).
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1 ‘‘(B) JUDICIAL REVIEW.—The failure of

2 the Secretary to comply with the requirement

3 described in subparagraph (A) shall constitute

4 final agency action for purposes of judicial re5 view. If the court conducting the review deter6 mines that the Secretary has failed to comply

7 with the requirement, the court shall order the

8 Secretary to comply within a period determined

9 to be appropriate by the court.

10 ‘‘(3) DURATION.—If a State establishes a re11 quirement in accordance with paragraph (1), the re12 quirement may remain in effect until the Secretary

13 acts on a petition submitted under paragraph

14 (1)(C).

15 ‘‘(d) NO EFFECT ON PRODUCT LIABILITY LAW.—

16 Nothing in this section shall be construed to modify or

17 otherwise affect the product liability law of any State.

18 ‘‘(e) NO EFFECT ON IDENTICAL LAW.—Nothing in

19 this section or section 403A relating to a food shall be

20 construed to prevent a State or political subdivision of a

21 State from establishing, enforcing, or continuing in effect

22 a requirement that is identical to a requirement of this

23 Act, whether or not the Secretary has promulgated a regu24 lation or issued a policy statement relating to the require25 ment.
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1 ‘‘(f) NO EFFECT ON CERTAIN STATE LAW.—Nothing

2 in this section or section 403A relating to a food shall

3 be construed to prevent a State or political subdivision of

4 a State from establishing, enforcing, or continuing in ef5 fect a requirement relating to—

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

7 labeling, a State inspection stamp, religious dietary

8 labeling, organic or natural designation, returnable

9 bottle labeling, unit pricing, or a statement of geo10 graphic origin; or

11 ‘‘(2) a consumer advisory relating to food sani12 tation that is imposed on a food service establish13 ment, or that is recommended by the Secretary,

14 under part 3–6 of the Food Code issued by the Food

15 and Drug Administration and referred to in the no16 tice published at 64 Fed. Reg. 8576 (1999) (or any

17 corresponding similar provision of such a Code).’’.

18 (c) CONFORMING AMENDMENT.—Section 403A(b) of

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

20 the end the following:

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

22 403B(b) shall apply to any such petition, in the same

23 manner and to the same extent as the requirements apply

24 to a petition described in section 403B(b).’’.

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