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Delaney Lives! Reports of Delaney's Death Are Greatly Exaggerated

January 1998

Citation: 28 ELR 10003

Issue: 1

Author: James S. Turner

Editors' Summary: When Congress passed the Food Quality Protection Act of 1996 (FQPA), many in the press announced that this law effectively repealed the Delaney Clause, which they claimed had banned all traces of cancer-causing pesticides in processed foods. This Article analyzes what the FQPA actually did. It begins by describing the history of the Delaney Clause. The clause appears in three statutes, most famously in the food-additive provisions of the Federal Food, Drug, and Cosmetic Act (FFDCA). The food-additive Delaney Clause, the Article explains, allowed EPA, in effect, to set tolerances for cancer-causing pesticides in both raw and processed agricultural commodities: What it prohibited was pesticides in processed foods in excess of the amount allowed in raw agricultural products. The FQPA did not amend this Delaney Clause, but rather addressed the so-called Delaney Paradox which, according to Delaney critics, resulted because FFDCA § 409 seemed to prohibit residues of cancer-causing pesticides in processed foods, while FFDCA § 408 and FIFRA § 2 permitted the setting of residue tolerances for carcinogenic pesticides in raw agricultural products. What the FQPA did, the Article concludes, was repeal the prohibition on cancer-causing pesticides in processed foods that exceed these raw agricultural commodity tolerances; add a new, more restrictive, safety standard that allows no more than a one-in-one-million risk of cancer from pesticide residues in both raw and processed foods; and then move a tolerance "pass through" provision from § 402 to § 408 of the FFDCA.

Jim Turner is a member of the D.C. and Ohio bars, and is a partner in the law firm of Swankin & Turner in Washington, D.C. He is also the author of The Chemical Feast: The Nader Report on the Food and Drug Administration (Penguin 1977). Linda Bonvie, Jaylene M. Sarracino, Esq., Young Yi, Bill Bonvie, Jamila Smith-Cha-Jua, and Savita Krishnamurthy assisted with the research for this Article.

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