For two brutal years, I had struggled with paltry support, and to little evident effect, in what everyone could now see was a losing fight. Dispirited and exhausted, I did something uncharacteristic: I agreed, right there at the table. From the looks on their faces, I could see that my staff was taken aback. The secret to successful negotiations is never answering right away. Over the years, we’d won numerous important concessions on all sorts of bills by following a disciplined routine when presented with these sorts of proposals. Experience taught me to ask for a recess, talk to the experts on my staff, and then offer a counterproposal, or, if necessary, simply decline. This careful approach provided a negotiating advantage over the many members who would “get ahead of their staff,” as the phrase had it, and cut deals without pausing to consider the larger ramifications, as I had just done.
I could tell right away that my staff believed I had needlessly conceded an important fight. But as Dingell pointed out, I had agreed to the offer of an FDA disclaimer and now had to honor my word. This final barrier cleared, the bill moved rapidly through both chambers, and on October 25, 1994, President Bill Clinton signed the Dietary Supplement Health and Education Act into law.
DESPITE THE SETBACK WITH DIETARY SUPPLEMENTS, THE NUTRItion Labeling and Education Act of 1990 has functioned almost exactly as Congress intended. In a happy case of serendipity, Ed Madigan became secretary of agriculture shortly after the bill passed, and issued an order extending nutrition-labeling requirements to meat and poultry (which were not covered by the NLEA). Today, finding honest, accurate information about the foods we eat has never been easier, and the benefits to health-conscious consumers have been immeasurable.
From a public standpoint, too, the NLEA has been a success. Most media coverage of Washington focuses disproportionately on “big issues,” like the president’s budget, that often have little impact on the lives of most Americans (Congress generally ignores the president’s budget and does as it pleases). Meanwhile, smaller issues like food labeling fly under the radar, but nonetheless have a revolutionary impact on most people’s lives, even if they don’t realize it. Whether strictly adhering to the South Beach Diet or simply trying to keep an eye on sodium or cholesterol intake, it’s a good bet that most Americans make use of nutrition labels every day of their lives. In fact, knowing what you’re eating has become so commonplace that it’s hard to imagine there was ever a time when you couldn’t get basic nutrition information on food labels.
The fact that the law has turned out to be so useful is especially gratifying, since it came about not because of public demand, but rather by congressional initiative. It’s a good example of the leadership that critics so often claim is lacking in Washington. Much as Proposition 65’s threat of a warning label prompted manufacturers to provide healthier food in California, today’s nutrition labels function the same way on a national scale by empowering consumers who want to buy healthier foods and in turn forcing companies to supply them. We’re a healthier country because Congress acted.
The only smirch on our original effort is the Dietary Supplement Health and Education Act of 1994. As a lesson in politics, DSHEA is instructive because it shows how industry can concoct an issue based entirely on misinformation that ultimately allows it to circumvent the law. Sometimes spin trumps fact. When the context is a political campaign, most people understand this and guard against it. But they’re not nearly as used to being deceived in a legislative campaign. The industry’s decision to use health food stores as the vehicle to accomplish this was especially effective since many people instinctively trust them to be an impartial source of information, much like their doctor, and in reality they were not. The vast majority of consumers never realized that the outcry against Congress was being financed by the supplement industry.
As policy, DSHEA has been every bit as harmful as we feared, demonstrating anew that any market lacking regulation or the need to ensure safety quickly sinks to the lowest common denominator. The FDA disclaimer doesn’t seem to have had the slightest impact on how people use supplements. Since the law went into effect, a number of them have proved to have serious health effects. For years, the most popular over-the-counter weight loss supplement, an herbal stimulant called ephedra, was linked to heart attacks, strokes, and seizures. Only the death in 2003 of Baltimore Orioles pitcher Steve Bechler, who had been using ephedra, caused sufficient notoriety for the FDA to finally ban it. Many other dangerous substances are still for sale.
Since the legislative loss on dietary supplements, we have continued to press for changes in the law and, along with getting ephedra off the market, have made slow but steady progress toward that end. After the September 11 attacks, when unscrupulous companies began marketing supplements as “cures” for anthrax and other bioterrorism agents, we were able to get a provision into the Bioterrorism Act of 2002 forbidding this practice and requiring all supplement companies to register with the FDA and track the source of their ingredients. In 2006, we passed a law requiring manufacturers to report adverse reactions, like those caused by ephedra, to the FDA. Other measures made it through Congress, only to be ignored by the Bush administration.
With a new administration in power, that, too, could soon change. In time, bad laws always reveal themselves. And one enduring truth about Washington is that no issue is ever settled for good.
CHAPTER 7
Pesticides and Food
ONE FREQUENT COMPLAINT ABOUT CONGRESS IS THAT partisan differences make it all but impossible to reach agreement on many of our most pressing problems. Some things, this line of thinking goes, are simply too divisive or controversial ever to be resolved. While the increased hostility between Democrats and Republicans certainly poses a hurdle, it is hardly insurmountable. The example of how the government came to regulate harmful pesticides that were making their way into the foods we eat illustrates how bipartisan cooperation can happen—and how sometimes, even on issues of tremendous importance, the public may not even realize that it has occurred. By the mid-1990s, the problem of what to do about pesticides had frustrated Congress for almost two decades, until members of my staff and the staff of Tom Bliley, a Virginia Republican, met secretly with representatives of a few key government agencies for three days of negotiations. This negotiating session solved a seemingly intractable problem by producing a new law to regulate pesticides that was both easier for industry to comply with and vastly improved health protections for millions of American families.
In 1995, a woman named Nancy Chuda came to my office to lobby me about the effects of pesticides on children. A few years earlier, Nancy’s five-year-old daughter, Collette, had died of a rare, nongenetic kidney cancer called Wilms’ Tumor that was generally believed to be caused by exposure to chemical pesticides. Nancy wanted Congress to pass stricter safety standards for pesticides, and she had solid evidence to justify why this was a good idea. A number of recent studies had established a link between environmental toxins like pesticides and childhood cancer. And at the time, environmental protection standards in the United States were based on determinations of the potential effects of carcinogens on a 155-pound adult male. Children are obviously much more vulnerable to dangerous chemicals than fully grown adults.
My subcommittee, Health and the Environment, had legislative and oversight jurisdiction over water, air, and food. Establishing appropriate safety standards to protect children, and especially infants, from pesticides was a goal that had long eluded me. The pesticide industry grew out of the chemical weapons industry of World War II. After the war, chemical companies discovered that many of the substances they produced were effective killers of weeds and bugs and could be put to use by America’s farmers. Chloropicrin, a World War I chemical warfare agent thought to have DNA-damaging effects, became an effective fumigant to kill plant root fungi and bacteria (it is also an active ingredient in tear gas). Organophosphate pesticides were originally developed in Germany during the 1930s as nerve agents for military use. Little was do
ne in the way of health and safety testing. These pesticides and others like them were routinely being used on fruits and vegetables.
Over the years, a gradual awareness of these health risks had begun to take hold. In 1962, Rachel Carson’s book Silent Spring alerted the public to the environmental dangers of DDT and similar agents. The environmental movement of the 1970s furthered this cause. In 1989, the Alar scare, prompted by a 60 Minutes broadcast about the cancer-causing chemical that apple growers sprayed on their trees only for it to make its way into children’s apple juice, led to heightened awareness of the dangers of pesticides on food. But none of this was enough to create the momentum necessary to pass meaningful safety standards. A Clinton administration bill offered in 1993 to limit the use of pesticides had gone nowhere.
One difficulty confronting major pesticide legislation was that, in contrast to similar health issues like safe drinking water and clean air, most people didn’t have a clear concept of the problem and its effect. The clean air debate in the United States was transformed overnight in 1984 when methyl isocyanate gas leaked from the Union Carbide chemical plant in Bhopal, India, instantly killing more than three thousand people. Lacking such a vivid illustration of its dangers, the problem of pesticides had lingered unresolved for years, even though some of the products sprayed on crops derived from the very same chemical, methyl isocyanate, that had laid Bhopal to waste. In part for these reasons, pesticides also didn’t rate as high a priority for the major environmental groups, so outside support was hard to come by as well.
In oversight hearings, the subcommittee had nevertheless made every attempt to convey the horror of how cancers had destroyed children like Collette Chuda and to highlight reports like the landmark 1993 study by the National Academy of Sciences that connected the alarmingly frequent instances of childhood cancer with pesticides. So the issue could be dramatized—but our efforts to do so usually produced only one-day stories. Good legislation is the fruit of a complicated process that requires sustained pressure and attention. The problem with generating public interest about pesticides was that it was hard to pinpoint the effects, however deadly, on particular people. The gap between a period of prolonged exposure and the onset of disease—as contrasted with the sudden deaths by asphyxiation in Bhopal—also made it easier for our opponents to block our efforts. The chemical companies would besiege members of Congress with elaborate charts and numbers to “prove” that legislation like the Clinton bill that sought to curtail the use of chemical pesticides would without a doubt bankrupt the industry.
Another obstacle stemmed from a quirk of the law: It placed completely different regulations on raw foods and processed foods, particularly for cancer-causing substances. This had the perverse effect of imposing very strong standards on processed foods and very weak standards on raw foods, an anomaly that had kept industry and public interest groups at war for almost forty years. The main source of contention was an obscure legal provision known as the Delaney Clause. The Delaney Clause was a 1958 measure named after Representative James Delaney of New York that banned from processed foods “any chemical additive known to induce cancer.” The capacity to measure the amount of carcinogens in food was not very sophisticated in 1958. But by the 1970s, the technology had advanced to the point where even trace amounts could be detected. This created a headache for farmers and food manufacturers. Many of the pesticides they had relied on for years were now showing up as carcinogens in processed foods, putting manufacturers in technical violation of the Delaney Clause. The industry dealt with this problem in two ways. Beginning in the late 1970s, its allies in Congress urged that the clause be weakened or preempted. At the same time, it pressured state and federal regulators not to enforce the law too strictly, lest it drive them out of business. For a long while, this approach seemed to work. The Delaney Clause was a strong law on the books, but it simply was not being enforced. Finally, public interest groups that supported the strict standard sued for tougher enforcement, and in 1992 the Ninth Circuit Court of Appeals in San Francisco ruled that the government must uphold the absolute ban on carcinogens.
But the Delaney Clause did not apply to raw foods, and the laws that did apply were awful—in effect, permitting farmers to use chemical weapons to treat their crops. This was especially harmful to children, who tend to eat more fresh fruits and vegetables than adults do. Everyone knew the law didn’t work because it didn’t cover raw foods the way it should have. And yet it seemed impossible to fix. In exchange for not blocking stronger raw food laws, industry demanded the repeal of the Delaney Clause, which would weaken the regulation of processed foods.
IN 1994, THE POLITICS OF PESTICIDES, AND EVERYTHING ELSE, WAS upended when Republicans won control of the House of Representatives, changing the culture of Congress overnight. Republican issues suddenly took precedence, which meant that industries’ interests often trumped the broader public good. Republicans not only controlled the committees, but also the rules. One of their first acts was to repeal many of the parliamentary maneuvers I had used in the past to delay legislation, like Reagan’s Clean Air Act amendments, that seemed dangerous. Most significantly, Republicans completely overturned the committee system that had obtained since long before my arrival in Congress. The old system, in which chairmen like Paul Rogers took careful account of everyone’s views, and members of both parties deferred to the expertise of committees and subcommittees, gave way to a rigid hierarchy in which the only view that mattered was the view of the new Republican leadership.
What had been a “bottom-up” process now became “topdown” in a way that distinctly recalled how the California Assembly had operated under Jesse Unruh. All decisions flowed from the top. Ideologues like Newt Gingrich and Tom DeLay, who dominated the Republican leadership, had little interest in anyone else’s input, including those members of their own party who didn’t fall into line. Republican chairmen quickly realized that they served at the pleasure of their leadership, and that the leadership’s only concern was ramming through the provisions of the “Contract With America,” a list of right-wing grievances that had featured prominently in the 1994 midterm elections. Rather than draft bills, these chairmen were handed legislation by the leadership (often written by lobbyists) and ordered to pass it in a matter of days. Sometimes there would be a hearing; other times there wouldn’t be. Debate was curtailed, amendments often limited or forbidden, and on many occasions members weren’t even given enough time to read the bills they were being asked to vote on. As a result, many members (especially Democrats, who were shut out of the drafting process) didn’t have much of an understanding of the legislation passed through Congress during this period. Congress had stopped functioning as a legislative body wherein committees with relevant expertise wrote the nation’s laws, but instead became a rubber stamp for the most powerful elements of the Republican Party. And “consensus” became a bad word.
It wasn’t long before the Republican leadership turned to the issue of pesticides—or rather, to satisfying the food industry’s desire to at last repeal the Delaney Clause. The instrument for doing so was a bill sponsored by Tom Bliley, the Virginia Republican and chairman of the House Energy and Commerce Committee, that appeared to have been written by industry lobbyists. You can usually determine a bill’s provenance by checking certain markings on it. When a congressman’s staff writes a bill, the formal text is prepared by the House Office of Legislative Counsel, which ensures that existing statutes are properly amended and the new measure’s language conforms to the necessary rules. When a bill has undergone this process, each page carries an HLC file number. What gave the Republican pesticide draft away (apart from its content, an industry wish list) was its lack of HLC markings—an absence true of much of what the new Republican leadership introduced. Needless to say, the prospects for my own bill, mandating disclosure of carcinogens in all foods and setting safety standards for kids, did not look very rosy.
Because the Appeals Court had ruled that the Delan
ey Clause must be enforced, Republicans were rather urgently set on repealing or preempting it. By the summer of 1996, we were very much on the defensive and stood a good chance of getting rolled. But powerful as it was, Bliley’s contingent faced an unwelcome reality: Even if the bill got through Congress, President Clinton would almost surely veto it. Were that to happen, the food industry would have to contend with the full weight of the Delaney Clause.
House Republicans had an additional worry. For all their Sturm und Drang, few provisions of the “Contract With America” had actually made their way into law. And their leadership had committed a serious tactical error when it shut down the federal government during a November 1995 budget dispute with the White House, a maneuver that backfired when the public blamed the Republicans, rather than Bill Clinton, for the fiasco. With the 1996 election looming, House Republicans were beginning to realize that they had precious little to show voters in the way of tangible accomplishments.
These conditions created a perfect opportunity for bipartisan compromise. Although Bliley and I hailed from opposite ends of the political spectrum and our views diverged on almost every issue, we had developed a good relationship. Bliley, a mortician by trade and a serious Catholic, hailed from Richmond, Virginia. His manner was always gentlemanly and proper. I had come to know him over the years and regarded him with fondness and respect. Once, on a congressional delegation to Prague, Bliley and his wife had joined Janet and me for Passover Seder. This friendliness eventually led us to collaborate on legislation. Only a month or so before the pesticide issue came to a head, we had put aside our strong policy disagreements and struck a deal to renew the Safe Drinking Water Act. Recognizing that it would be nearly impossible to pass my own pesticide bill, but also that Republicans were growing desperate for an achievement, I sensed that even in the minority we might be able to insist on something strong. So I suggested to Bliley that it might be worthwhile to get together in secret and conduct a hypothetical negotiation to see if we could reach an agreement on pesticides.
The Waxman Report Page 13