Recycling and food packaging -two great things that go great together? Not according to the Food and Drug Administration, which, in its overzealousness to protect our health, needlessly prevents food packagers from using recycled materials. Last week's Perspective ex-plained how since the 1958 Food Additive Amendments, FDA has regulated the components of food packaging as indirect additives, on the theory that anything in a package just might, someday, get into food. Plastic bottle makers who invent a bottle have to submit a food additive petition to FDA.
The regulatory framework is slightly different for manufacturers of food packaging with recycled content. In 1958, there were no Coke bottles made with 25 percent recycled plastic or egg cartons made of recycled polystyrene, and the folks at FDA didn't make any special regulations for recyclers. Any recycled material can be used in place of an already-approved virgin material, so long as it's ``suitably pure.''
But how pure is ``suitably pure?'' There is no obvious way to tell. Recycled plastics come from lots of unknown sources, and will probably contain more ``contaminants'' than virgin materials. This doesn't mean they're necessarily unsafe, but it does mean they are less ``pure.'' To clarify matters, FDA issues in-formal ``non-objection letters'' to let packagers know that particular uses of recycled materials are OK. Nonobjection letters aren't officially required, but many packagers who use recycled material consider them a must.
At first, things were confusing because FDA didn't have any hard and fast rules on when it would issue a nonobjection letter. Last July, FDA finalized its ``threshold of regulation policy'' - announcing that if contaminants are present in teensy-weensy amounts, FDA doesn't care.
The process is simpler now, but because of FDA's nonobjection letter backlog, it's still long and expensive. Getting a nonobjection letter can take a half a year or more, and can cost hundreds of thousands of dollars. And we still don't have a satisfactory answer to the question: ``How teensy-weensy is teensy-weensy enough?''
FDA continues to be too restrictive in its food packaging regulations, and discourages new packaging applications, especially recycled-content packaging. Every nonobjection letter request now requires an environmental assessment, which will add an extra few months of delay.
Also, FDA uses conservative risk assessment methods. It assumes the worst for any chemical, regardless of whether any migration of contaminants between the packaging and the food has been detected. When many animal studies have been done on a chemical, FDA uses the most pessimistic one, and extrapolates the results to humans in the most conservative way. The new policy actually may tighten FDA standards. And FDA arbitrarily gives itself blanket permission to sidestep its own rules.
Conservative risk assessment, which exaggerates risk, is a fact of life in regulatory agencies-a relic of earlier days when we knew less about diseases and had to exaggerate to compensate for our ignorance. Today, some conservatism still may be justifiable - but this much is ridiculous, especially given the good safety record of food packaging, and FDA's admission that unlike direct food and color additives, indirect additives migrate to food in such minuscule amounts that they're ``of extremely low or no toxicological concern in terms of food safety.''
So what should FDA do? It should adopt reasonable risk assessment methods. It should act less arbitrarily. And it should cut down on the delays in issuing nonobjection letters - for in-stance, by adopting a pre-market notification system. It also could reduce delays by farming out its approval system to approved, independent, competing labs. Current FDA bills incorporate some of this wisdom, but not enough.
We don't want to force food into recycled packages-that might not be safe. But we should not discourage safe and profitable recycling. No one knows what ``proper levels'' are for recycled plastics in food packaging, but we know that the more of a drag FDA is, the longer it'll take recycled material to grow to desired levels. Protecting health is important, but health isn't served by exaggerating risk and arbitrarily enforcing regulations. There's a lot of recycling that makes economic sense and doesn't need a government mandate. But it's being discouraged by useless health regulations that don't protect our health. If food additive regulations are properly eased, the food packaging industry and the environment will benefit.
Volokh is an assistant policy analyst at the Reason Foundation, a public policy think tank based in Los Angeles.
