Academic journal article Texas Law Review

Farm Children as a "Major Identifiable Subgroup" for Setting Torlerances under the Food Quality Protection Act of 1996

Academic journal article Texas Law Review

Farm Children as a "Major Identifiable Subgroup" for Setting Torlerances under the Food Quality Protection Act of 1996

Article excerpt

Farm Children as a "Major Identifiable Subgroup" for Setting Tolerances Under the Food Quality Protection Act of 1996^

On August 3, 1996, the Food Quality Protection Act of 1996 ("FQPA") became law, ushering in a new regime of food safety law and pesticide regulation in the United States.1 The new law was the result of a bipartisan effort and was supported by a wide variety of interest groups, from environmental groups to agricultural groups to chemical companies.2 The FQPA substantially amended the two regulatory pesticide statutes, the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA")3 and the Federal Food, Drug, and Cosmetic Act ("FFDCA").4 While the FQPA enacted many substantive changes to pesticide law, a primary function and goal of the law was to protect the public-and specifically infants and children-from the dangers of pesticides in food products.5 The FQPA sought reform through amendments to the standards for setting pesticide tolerances6 in food, which required many new considerations in establishing a legally permissible amount of pesticide residue in food products. Among these new considerations are attention to aggregate exposure, specific safety provisions for infants and children, and an examination of exposures with a common mechanism of toxicity.7 IMAGE FORMULA4

One important provision of the FQPA for setting pesticide tolerances was the identification and consideration of "major identifiable subgroups" of the population.8 Focusing on this provision, the Natural Resources Defense Council ("NRDC") and other groups petitioned the Environmental Protection Agency ("EPA") in 1998 to identify farm children as a "major identifiable subgroup" under the FQPA.9 They argued that farm children constitute a population whose disproportionate exposure to pesticides should be considered in the tolerance-setting process.10 Agri-chemical interests quickly responded and objected to the petition in their own submission to the EPA.11 The EPA has failed to act on the NRDC petition.

This Note will argue that farm children should be identified and considered by the EPA as a "major identifiable subgroup" for the purposes of setting pesticide tolerance levels under the FQPA. Part I will discuss the Food Quality Protection Act of 1996 generally-including its background, its substance, and its focus on the protection of infants' and children's health. Part II will discuss the specific statutory requirements of the FQPA for setting tolerances and the tolerance-setting procedure of the EPA. Part III will analyze the arguments for and against identifying farm children as a "major identifiable subgroup." It will argue that the statute on its face requires such an identification and, alternatively, that, in the absence of a clear statutory mandate, policy considerations dictate an interpretation of the statute that would reach the same result.

I. The Food Quality Protection Act of 1996

On August 3, 1996, President Clinton signed the Food Quality Protection Act of 1996, enacting a new law for pesticide food safety in the United States.12 Clinton proclaimed that the Act would "revolutionize the IMAGE FORMULA7

way we protect food from harmful pesticides" and that it "prove[d] we don't have to choose between a healthy environment and a healthy economy."13 Congress had unanimously passed the Act, which had been supported "by the Administration and a broad coalition of environmental, public health, agricultural and industry groups."14 The Act amended large parts of both the FIFRA and the FFDCA, the two federal statutes governing the EPA's regulation of pesticides.15

A. Background of the FQPA

While there had been efforts for more than two decades to reform inconsistencies between the FIFRA and the FFDCA and to update their provisions,16 the direct impetus for the FQPA came from two main factors. …

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