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Is FDA Food Safety Revision in Our Future?

Aug. 24, 2021
Bill aims to reassess the chemicals used in food

Food safety comes in many forms. Years ago, Congress passed the Food Quality Protection Act, amending the nation’s pesticide law to ensure a safer, more reliable, food supply. Consumer groups have urged Congress for years to modernize the nation’s food chemical law, the Federal Food, Drug, and Cosmetic Act (FFDCA), to address often-stated concerns with chemicals in food. Thus far, those concerns remain largely unaddressed by any legislative effort. Things may be changing. On July 26, 2021, Representative Jan Schakowsky (D-IL), chair of the House Energy and Commerce Subcommittee on Consumer Protection and Commerce, introduced the Food Chemical Reassessment Act of 2021 (H.R. 4694), which would require the U.S. Food and Drug Administration (FDA) to study and reassess chemicals used in food. This article summarizes the measure, and speculates on its likelihood of passage.

Background

More than ever, consumers and other stakeholder groups are intensely interested in ensuring the foods we consume, and any chemicals added by food processors and others, are safe. Over the years, legislative efforts have arisen to modernize the FFDCA in ways similar to the modernizing of the Toxic Substances Control Act in 2016. For reasons not entirely clear, however, these efforts haven’t succeeded. With Congress energized on many fronts and a Democrat in the White House, this could change.

The Food Chemical Reassessment Act of 2021 would amend the FFDCA to create an Office of Food Safety Reassessment within the FDA’s Center for Food Safety and Applied Nutrition. Its purpose would be to reassess the safety of food additives, food contact substances, GRAS (Generally Recognized as Safe) substances, and prior-sanctioned substances or classes thereof. Beginning in 2022 and at least once every three years, the office would reassess the safety of at least ten of these substances. The office would determine whether a substance is “safe” within the meaning of FFDCA Section 409 and establish conditions, if any, for safe use of the substance.

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Under the bill, the first ten substances for reassessment include: perfluoroalkyl substances and polyfluoroalkyl substances (PFAS); ortho-phthalates; tert-butylhydroquinone; titanium dioxide; potassium bromate; perchlorate; butylated hydroxyanisole (BHA); butylated hydroxytoluene (BHT); brominated vegetable oil (BVO); and propyl paraben. Several of these substances, including titanium dioxide and PFAS, are high-profile chemicals already under global scrutiny and no strangers to controversy.

The bill would also reestablish the Food Advisory Committee. The committee would counsel the Secretary of Health and Human Services on the standards for reassessments and the process and methods necessary to complete the work.

The Environmental Working Group, Environmental Defense Fund, Consumer Reports, Center for Science in the Public Interest, Healthy Babies Bright Futures, Breast Cancer Prevention Partners, Defend Our Health, and Earthjustice all endorse the bill. Other groups are expected to support the measure in the months ahead.

Discussion

Congress plainly is in overdrive these days with precedent-setting infrastructure, voting rights, and police reform legislation, to name a few. Because H.R. 4694 was referred to a busy House Energy and Commerce Committee for action, and with no Senate companion legislation introduced to date, there’s a very good chance this bill will not move forward any time soon. This much is clear.

What also is clear, however, is calls for FFDCA modernization to continue to build, along with increased awareness about the chemicals in our food. Creating a new FDA Office of Food Safety Reassessment would be a significant undertaking for the agency, but some argue an essential addition to ensure the public’s confidence in food safety. Reestablishing a Food Advisory Committee is a less controversial step, and is not expected to encounter significant resistance.

Proposals to “reform” the GRAS-listing procedures are not new, and some contend the concept has outlived its utility

Stakeholders in this space are urged to monitor this effort carefully. Some believe food safety reform is a goal whose time has come.

LYNN L. BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at [email protected]

Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006). The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.

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