Happy 30-Year Anniversary FQPA!

This year marks at least one other celebration besides the nation’s 250 years since the Declaration of Independence. Though much smaller in scale and scope, regarding pesticide regulation, the Food Quality Protection Act (FQPA) was very much a pivotal event.

Setting the Stage

As the 1990s dawned, news about pesticides was coming off the Alar controversy, energized by a 60 Minutes episode in 1989 (Feb. 26, 1989) that led to school districts banning apples, congressional hearings (Mar. 16, 1989) where Senators asked U.S. Food and Drug Administration (FDA) witnesses (Administrator Frank Young) to eat an apple while testifying, and appearances by Hollywood stars (Meryl Streep) raising questions about the safety of the nation’s food supply.

Meantime, a court case (Les v. Reilly, 968 F.2d 985 (9th Cir. 1992)), winding its way through a long trail of litigation, finally was decided with an opinion that indeed the Federal Food, Drug, and Cosmetic Act’s (FFDCA) Delaney Clause means literally what it states: pesticide residues in processed food are prohibited if they “induce cancer in man or animals.” That last part — cancer in animals — means that tumors in laboratory animal tests forbid such tolerance, even if regulators were convinced with ample scientific support that tumors in certain of those tests were irrelevant for estimating potential cancer risks to human consumers. Such was the “Delaney Paradox” — tumors in the animal tests for new pesticides would prohibit products considered safer and would not replace older pesticides even if regulators believed those newer products would replace existing “more risky” pesticides.

With the arrival of the Clinton Administration, legislative proposals had been floated, new ones introduced, and none proved successful. Ironically, the arrival of the Gingrich “revolution” and a new Republican majority eventually led to a fix to the Delaney Clause (at least for pesticides; regarding other food additives, the story continues to this day).

How Did the 104th Congress Find a Way?

Speaker Newt Gingrich (R-GA) arrived with the “Contract With America,” promising, among other things, fundamental changes in the operations of Congress, fiscal policy, legislative priorities, and regulatory reforms. As this agenda unfolded during the 104th Congress (1995-96), media coverage reported that proposed changes to environmental regulations were heavily influenced by the regulated entities, lobbyists for industries pressing long-standing agendas, and other indications that the “swamp in Washington” was not exactly being drained. By the summer of 1996, there were reports that the Speaker’s office sought a “green vote” among the House Committees to rebut the reports of industry-capture of the new Congress. The House Energy and Commerce Committee, then and now, is responsible for authorizing most environmental legislation (air and water pollution, hazardous waste, pesticide residues in food).

Little known at the time, staff of the Chair (Thomas Bliley (R-VA)) and Ranking Member (John Dingell (D-MI)) had participated in a “food safety dialog” a few years earlier and knew the pesticide-Delaney issues and many members of the various interest groups who covered those issues. To summarize a complex set of events, that cooperation led to a larger conversation with staff from other congressional gatekeepers (Representative Henry Waxman (D-CA), Chair of the relevant subcommittee; Representative Pat Roberts (R-KS), Chair of the Agriculture Committee; and Senator Edward Kennedy (D-MA)). For the Administration, senior staff from FDA, the U.S. Department of Agriculture (USDA), and the U.S. Environmental Protection Agency (EPA) joined the effort.

Other Members and constituencies were also involved. The congressional core of support led to a surprising press conference with Representatives Roberts and Waxman, uncommon allies, both supporting a newly minted compromise on legislation where previously “many had tried, and all had failed” — the effort to “reform Delaney.”

The reform included the now familiar legislative standard of “reasonable certainty of no harm,” the extra default 10-fold safety standard regarding dietary risks to children, requirements to include aggregate and cumulative risks across pesticides, evaluation of possible endocrine effects of pesticides, and other stringent requirements as part of the replacement for the out-of-date Delaney Clause.

The final legislative package was also exceptional as it received unanimous support (roll call vote 417-0) in the House of Representatives. The Senate agreed by unanimous consent the following day. President Clinton signed the legislation on August 3, 1996.

30 Years Later…

Was it — then or now — “perfect?” Far from it. EPA and other regulatory agencies will always struggle with how best to evaluate and balance the need to protect vulnerable populations, farmers, workers, neighbors, consumers, species, and water sources with accurate and transparent scientific evaluations meeting the ever-changing understanding of possible pesticide risks. And do this as part of the currently efficient modern agricultural production systems.

The legislation was certainly a surprise at the time and has aged relatively well compared to pesticide controversies of the previous eras (DDT, Chlordane, 2,4,5,-T, Kepone, Alar, Benomyl). Controversies about pesticide safety continue and some of those “clear” directives remain unfinished after 30 years. The Make America Healthy Again (MAHA) emphasis of the current Administration has energized advocacy about some specific pesticides (glyphosate and paraquat, among others) and has pushed concerns and emphasis on questioning the safety of the American food supply. The challenge of balancing the need for pest control technologies and assuring safety of pesticides used to produce food will continue for another 30 years and beyond.