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New Bill would Authorize Voluntary “Carcinogen-Free” Labeling of Food and Consumer Goods

By Mark L. Itzkoff

A new bill introduced into the U.S. House of Representatives last month could eventually result in new labeling for food and other consumer products.  H.R. 6601, The Carcinogen-Free Label Act of 2012 (CFLA) introduced last month by Rep. Theodore Deutch (D-FL) and Rep. Sue Myrick (R-NC), would require the U.S. Food and Drug Administration, Department of Agriculture, Environmental Protection Agency and Consumer Product Safety Commission to establish programs to permit labeling of products regulated by each agency as “Carcinogen-Free.”  The CFLA programs would be voluntary and would be funded through fees charged to companies applying to use the “Carcinogen-Free” label.

Under the proposed legislation, companies who apply for the label will be required to submit an application that includes a list of all the substances contained within the product along with a sample of the product for testing by the appropriate agency.  Information contained in the applications is deemed to be a trade secret and is not disclosable under the Freedom of Information Act.

Products would be eligible for approval if the agency determines that the list provided is accurate, the product does not contain any carcinogens and that the product does not contain any substances that “display carcinogenicity upon degradation, upon interactions with other substances contained within the product or exposed to the product, during storage or transportation, or during intended use of the product, …”  The bill defines a carcinogen as either: (1) a substance listed in the National Toxicology Program Report on Carcinogens that is known to be a human carcinogen or reasonably anticipated to be a human carcinogen (i.e., any substance listed in the NTP report) or (2) a substance described in EPA’s Integrated Risk Information System (IRIS) as carcinogenic to humans or likely to be carcinogenic to humans.  Companies that use the “carcinogen-free” label without an approved application or that market products with substances not listed in their application are subject to fines up to $100,000.

In the case of food, CFLA does not differentiate between substances added to foods during processing and substances that are naturally present.  Thus, potatoes and other starchy foods might not be eligible for the “carcinogen-free” label if they contain substances that form acrylamide when the food is fried, roasted or baked.

The proposed bill is in some ways a mirror image of the California Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop 65).  CFLA as currently proposed would permit suppliers to voluntarily submit applications and label their products as “Carcinogen-Free,” whereas Prop 65 requires suppliers to warn before “exposing” consumers to products containing carcinogens.  Thus while CFLA and Prop 65 have similar goals, their respective approaches to achieving those goals are very different.

It should be noted that under the present proposal, CFLA would not include an exemption for products that contain only insignificant concentrations of the listed carcinogens.  By comparison, Prop 65 allows California to establish “safe harbor” exposure limits for listed carcinogens.  Products that contain listed carcinogens but whose use would result in exposure at or below the safe harbor limit are exempt from the Prop 65 warning requirements.

It is unlikely that the CFLA bill will be acted on in the few days remaining in the current Congress.  The Ag/FDA Blog will monitor the situation and post further should the bill be re-introduced in the 113th Congress.

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