Delaney Clause Is Nostalgia We Can't Afford

January 01, 1996  ·  Michael Fumento  ·  Law

What would you say if your city’s housing code dwelled at great length on the sturdiness and structure of thatched roofs? What if vehicle regulations required blinders on your automobile so that it doesn’t shy when an emergency vehicle passes by?

If you like those ideas, you’d love the federal Delaney Clause.

The Delaney Clause prohibits any measurable residue (from, say, pesticides) that has been found to cause cancer in either animals or man, in any processed food. Back in 1958, when it was passed as part of the Federal Food, Drug, and Cosmetic Act, it seemed to make sense. But just as Married with Children humor has replaced that of Leave it to Beaver (sigh), science has long since passed by Delaney.

That’s in part because back when Delaney was passed, residues could only be measured in parts per thousand. Now they can be measured in parts per trillion and sometimes even in parts per quintillion. Let’s say you detect a part per quadrillion in a plum product. That’s the equivalent of one plum in 73,511,000 tons.

Delaney is also outdated because it greatly preceded the use of maximum tolerated dose testing in laboratory animals which didn’t get going in earnest until the late 1960s. Under such testing, about half of all chemicals — both natural and synthetic — have caused tumors, which makes them verboten under Delaney.

Critics say this makes such testing useless, because it can’t possibly be that half of everything is carcinogenic.

The fact that the natural world is full of rodent carcinogens makes Delaney "absurd," says pre-eminent Berkeley biologist Bruce Ames.

"There are a thousand chemicals in a cup of coffee. Twenty-six have been tested and 19 have already proven positive, leaving about a thousand left to test," Ames told me. "The FDA would be laughed at if it tried to keep coffee from being added to ice cream. But there’s no reason to think it’s really a hazard."

In any case, decades after Delaney was passed, this rodent testing became its backbone.

Congress in 1958 could no more have predicted these new developments than the Continental Congress could have predicted the advent of warplanes, yet nobody claims we need to be restricted by language in the Constitution which only allows funding for an Army and a Navy. In addition to allowing natural rodent carcinogens while banning synthetic ones, Delaney encompasses another double standard.

First, more recent legislation does allow rodent carcinogens in unprocessed food, so long as the level is low enough under a certain formula to qualify as a "negligible risk." A fresh fruit could have a 10 parts per billion of a pesticide and be allowed but if it’s turned into a sauce or juice it might have only 1 part per billion and be banned.

But, some might argue, if Delaney has worked to date, why fix it if it ain’t broke? In fact, it’s always been broken but ignored. Because of the outrageousness of actually applying it, the EPA has simply chosen not to. But that’s about to change because of a lawsuit the Natural Resources Defense Council won against the Agency, forcing strict compliance with the legislation.

Now, like it or not, the EPA has no choice but to ban 85 uses of 38 different pesticide active ingredients. According to the Washington, D.C.-based non-profit research group National Center for Food and Agricultural Policy (NCFAP), this could result in increased production costs of $175 million over the next year and $212 million per year after that. The crops most affected would be potatoes, apples, and sugarcane, which account for 55% of the total potential costs. Look for your grocery bill to go up accordingly.

Said NCFAP Senior Research Associate Leonard P. Gianessi, ". . . the risks of the Delaney-listed pesticide uses are negligible, while the economic benefits that they provide are estimated to be $400 million per year."

The Delaney Clause was always too simplistic for its own good. Explains environmentalist and University of California biologist Garret Hardin, "The Delaney Act was passed because congressmen are old men. They are afraid of cancer. Because they’re scared, they wanted zero tolerance. They did not get any scientific advice. Environmentalists who are scientists would never support a zero tolerance level for anything."

That’s why even such ardent cheerleaders for pesticide regulation as regulation as New York Mt. Sinai pediatrician Dr. Phillip Landrigan and Senator Edward M. Kennedy (D-Mass.) have called for its replacement by something more workable.

Sen. Richard Lugar (R-Indiana) has introduced a bill which would implement recommendations by the National Research Council, including a "negligible risk" standard for both processed and raw foods. This determination would be made by the EPA Administrator, assisted by a newly-created science review panel.

Current EPA Administrator Carol Browner has already agreed in principle to such a scheme.

Make no mistake. Nostalgia is a great thing within limits, and here’s to bringing back Leave it to Beaver-type shows in prime time while pulling the handle on the toilet in which Married with Children swims. But when the health and safety of people are concerned, our regulations need to reflect present the latest scientific evidence, not the state of the art from 1958.