Hon. OREN HARRIS DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, Chairman, Committee on Interstate and Foreign Commerce, House of Representatives, DEAR MR. CHAIRMAN: This letter is in response to your request for a report on H.R. 3840, a bill to amend the Public Health Service Act to protect the public from unsanitary milk and milk products shipped in interstate commerce, without unduly burdening such commerce. This bill is designed to eliminate certain barriers to the free interstate movement of milk and milk products of high sanitary quality, barriers resulting from a diversity of State and local sanitary regulations and requirements and their application to out-of-State producing farms and plants and their products. The means adopted in this bill for achieving its objectives are in accord with principles for Federal milk sanitation legislation recommended by the Association of State and Territorial Health Officers on October 24, 1958, and with technical specifications furnished to the subcommittee on Health and Science in our supplemental report of December 17, 1958, on H.R. 7794, 85th Congress. Copies of those documents are enclosed herewith. In essence, the approach of this bill is to require receiving States and localities to accept-so far as health and sanitary requirements are concernedmilk (and certain kinds of milk products) emanating from an out-of-State plant, if the sanitary condition of the milk on arrival complies with the standards of a Federal Milk Sanitation Code established by the Surgeon General of the Public Health Service, and if the shipping plant (with its milk supply) is listed on the Surgeon General's then current interstate milk shipper's list as having been accorded, by duly accredited rating officers of the producing State, at least a minimum required rating of compliance with the code on the basis of rating methods and criteria established by the Surgeon General for that purpose. Participation in this "full faith and credit" system would be entirely voluntary so far as producing (exporting) States and milk shippers in those States are concerned. The Surgeon General-through approval of State rating plans, training and certification of State rating officers, inspection of plants and their milk supply, verification of compliance ratings, exclusion or removal of a plant from the list if he finds that it is not entitled to the required minimum rating, and other means-would assure the intergity and reliability of the system. The principal features of the bill may be summarized as follows: 1. The Surgeon General of the Public Health Service would be required to promulgate by regulation a Federal Milk Sanitation Code which sets forth standards and practices, including standards as to inspection, laboratory examination, and routine supervision, which if followed would result in milk and milk products of a sanitary quality at least equivalent to that specified for grade A milk and milk products in the Public Health Service's recommended Milk Ordinance and Code, i.e., the edition which will be current at the time of enactment of the bill. It should be noted in this connection that, as expressly recognized by the bill (sec. 813(c)), the application of the Federal Food, Drug, and Cosmetic Act would in no way be affected; and the standards of the Federal Milk Sanitation Code would, of course, make no allowance for any food additive or pesticide residues in milk or milk products which would be violative of that act. It is contemplated that future editions of the Service's recommended Milk Ordinance and Code will make the same policy more explicit. (The current edition (p. 35) provides that the "presence of antibiotics, chemical bactericides, or other additives not approved by the health officer, shall be deemed a violation * * *." It also contains a number of other specific provisions directed toward prevention of contamination of the milk or milk utensils with insecticides or other toxic substances.) The bill would also require the Surgeon General to promulgate rating methods and criteria to measure compliance with the Federal Code as well as the minimum compliance rating (at least 90 percent) for milk and milk products to be certified by producing States as complying with the Federal Code. 2. Certification of its shipping plants and their supplies by a producing State under a State plan approved by the Surgeon General, and in conformance with regulations promulgated by him, would make such plants eligible for inclusion in periodically published Public Health Service lists of certified interstate milk plants. Milk and milk products from a plant so listed would, under the bill, be immune from seizure or exclusion by a receiving State or its political subdivisions by reason of failure of either the milk or milk products or the sealed container thereof to comply with health or sanitation laws, regulations, or orders of the receiving State or locality. Upon receipt, however, the milk or milk products would be subject to rejection if they fail to conform to the bacterial, coliform count, temperature, and composition standards and other physical criteria of the Federal Milk Sanitation Code. Such milk or milk products would also, after arrival, be subject to nondiscriminatory regulations of the receiving State or locality as to (1) pasteurization of raw milk or milk products prior to delivery to retail establishments or before processing into other products, (2) protection from contamination and deterioration during transportation and storage in the receiving State, and (3) the type of container in or from which milk or milk products may be served or sold at retail. 3. The Surgeon General would be authorized to make such inspections, investigations, and laboratory examinations as he deemed necessary to assure the validity of State certification, and to delist shippers for cause either on his initiative or upon the complaint of a receiving State or locality. 4. The bill would also authorize the Surgeon General to conduct appropriate studies (directly or through grants) and training, furnish technical assistance to State and local authorities, encourage uniform adoption of the standards of the Federal Milk Sanitation Code, and cooperate with States, localities, industry, and others in the development of improved milk sanitation programs. 5. The bill provides for injunctions, at the suit of the United States or of any interested persons, to restrain acts by State or local officers in violation of the bill, but no criminal sanctions are provided. While directed toward the same objectives as H.R. 7794 (85th Cong.) on which we reported unfavorably on January 15, 1958, H.R. 3840 is substantially different in approach and application. Our objections to H.R. 7794 were based primarily on the view that neither the public health problem nor, in our opinion, the trade barrier problem arising from unduly restrictive health regulations, was of such dimensions as to justify the drastic remedy of an expensive, far-reaching, pervasive, and overriding system of direct and virtually exclusive Federal regulation of all milk and fluid milk products in or affecting interstate commerce and of the producing farms and plants, such as that bill contemplated. H.R. 3840, on the other hand, would not call for such direct Federal regulation. Rather, it would provide for continuance of existing State and local inspections for both intrastate and interstate milk, subject only to the "full faith and credit" requirements above outlined. Thus, the objections in our report of January 14, 1958, and those given in testimony of the Department's witnesses during hearings on H.R. 7794 before the Subcommittee on Health and Science, would not apply to H.R. 3840. This Department has consistently held that health regulations should not be used as domestic trade barriers to the interstate shipment of milk and milk products of high sanitary quality. At the same time, we recognize the public health gains that have been achieved through State and local sanitary control of milk supplies and the continuing need for such control. In accordance with these views, the Public Health Service has long advocated the adoption of uniform milk sanitation regulations which, if correctly applied, would result in safe supplies of milk, and to this end has developed a model milk ordinance and code for voluntary adoption by interested State and local governments. This model ordinance presently serves as the basis of milk sanitation regulations in 36 States and has been adopted by some 1900 local jurisdictions. The model ordinance and code provides for the acceptance of milk from beyond the limits of routine inspection on a basis of a milk sanitation rating of the outside milk supply made by the milk sanitation authority of the State of origin. To implement acceptance under this provision, and thereby facilitate the interstate shipment of milk of high sanitary quality, the Public Health Service cooperates with the States in a voluntary certification program for interstate milk shippers. This cooperative program has been successful in expediting the interstate shipment of considerable volumes of milk of high sanitary quality but, being voluntary, has not been able to eliminate all barriers to interstate shipment of such milk resulting from unduly restrictive milk sanitation regulations and duplicative inspection requirements. Subject to minor amendments, H.R. 3840 would in our opinion, provide an effective means for eliminating such barriers without displacement of existing State and local milk sanitation personnel and agencies and with modest expenditures by the Federal Government. Moreover, H.R. 3840 has important public health implications. It would assure milk and milk products of high sanitary quality to jurisdictions receiving milk and milk products under its provisions. In many cases, it would lead to improvement in the sanitary quality of the local supply as well. Despite the vast improvement in the sanitary quality of milk that has accrued from State and local milk sanitation programs, there still remain many areas where sanitary quality of milk and milk sanitation practices do not meet presently accepted standards. In such areas, we believe it inevitable that the immunities conferred by the bill, together with the prestige attached to compliance with the Federal standard, would inspire both industry and official milk sanitation agencies to seek the necessary improvements in their own control programs. Consequently, we are certain that the bill would result in added health protection for a substantial segment of the Nation's population. If the bill is otherwise favorably considered, we strongly urge elimination of the dollar limit on appropriations specified on page 20, lines 1-6, of the bill. While, as shown by the enclosed estimates, $1,500,000 per year would for some years be adequate for administering the Public Health Service's functions under the bill, this is, after all, an estimate, not a long-range forecast. To put a dollar ceiling in a health regulatory measure, especially one which makes receiving States and localities depend on the ability of the Public Health Service to carry out its responsibilities under the bill in all eventualities, would be seriously objectionable. The budgetary process is fully adequate to assure congressional verification of actual requirements for the program. Moreover, our staff has noted several other provisions where technical change would appear to be advantageous. These are listed in a staff memorandum which is enclosed for your information and consideration. We are enclosing herewith, as required by Public Law 801, 84th Congress (5 U.S.C. 642a), a statement of estimated administrative costs of the bill for the next 5 years. In conclusion, we believe that H.R. 3840, with the amendments referred to above, would provide a reasonable and practical instrument for coping with the trade barrier problem and, therefore, would recommend its enactment by the Congress, especially in view of the health benefits which are certain to accrue. The Bureau of the Budget advises that it perceives no objection to the submission of this report to your committee. Sincerely yours, ARTHUR S. FLEMMING, Secretary. STAFF MEMORANDUM-SUGGESTED TECHNICAL REVISIONS OF H.R. 3840 During the course of reviewing H.R. 3840, there appeared to be a number of passages the meaning of which would be further clarified by technical revision. These are as follows (section references being to new sections of the Public Health Service Act which the bill would add to that act): 1. Section 802(5), page 4, lines 20-25.-This paragraph defines the term "State milk sanitation agency," a term used in the bill with respect to State agencies of producing States cooperating with the Surgeon General in carrying out the rating system of the bill. In several States, however, authority for milk sanitation regulation is divided between two departments of the State government. Since the program provided for in the bill would involve milk sanitation ratings of interstate supplies, it would appear desirable that the bill define the term "State milk sanitation rating agency" rather than "State milk sanitation agency" and that the new term be substituted for "State milk sanitation agency" throughout the bill. The following definition is suggested: "The term 'State milk sanitation rating agency' means the State health authority, except that in any State in which there is a single State agency, other than the State health authority, engaged in making sanitation ratings of milk supplies, the term shall mean such other State agency." This change would require insertion of the word "rating" between the word "sanitation" and the word "agency" elsewhere in the bill as follows: (a) Section 805, page 6, line 23. (h) Section 807 (d), page 11, line 19. 2. Section 803, page 5, line 10.-The insertion of "and their milk supply" is suggested following the word "plants," in order to prevent any possible misunderstanding of the application and scope of the standards to be promulgated. 3. Section 805, page 6, line 23.-Only the State milk sanitation (rating) agency as defined in section 802 (5) should be permitted to submit a plan. Therefore, the word "Any" at the beginning of the sentence should be changed to "The". 4. Section 805, page 7, line 6.—Addition of the words "and their milk supply," is suggested to follow the word "plants". (See 2, above, and see p. 7, line 3, of the bill.) 5. Section 806, page 7, line 21.-Strike out the period at the end of the line. 6. Section 807, page 8, line 25, down to page 9, line 2.-Rewording is suggested as follows: "section (b), an interstate milk plant shall be included on such list if such plant and its milk supply has, by a certificate currently in effect at the time of such listing, been certified to the Surgeon Gen-". 7. Section 807(b), page 9 lines 6-8.-In order to avoid use of the undefined term "interstate milk shipper," we suggest that the sentence be revised to read as follows: "Such list shall identify the interstate milk plant or plants involved in any such certification, the persons having legal ownership or control thereof, and the milk and milk products covered by the certification." 8. Section 807, page 9, lines 16, 18, and 22.-Insertion of the words "and its milk supply" after the word "plant" in each of these lines is suggested for clarity. 9. Section 807, page 10, line 23.-Substitution of the word "the" for the word "such" and insertion of the phrase "of an order issued pursuant to paragraph (1)" after the word "date" is suggested as a matter of clarity. 10. Section 809, page 16, line 13.-For the sake of clarity, addition of the following words before the period at the end of the line is suggested: "to restrain any such application or action which interferes with, conflicts with, or violates any provision of this title". 11. Section 810, page 17, lines 3 and 4.-The word "plants" should read "plant" and the word "their" should be changed to "its" in order to agree with the preceding part of the sentence. 12. Section 813(a), page 19.-Strike out the first comma in line 6; strike out "or to" in line 7 and substitute "and"; insert a comma after "dry whole milk" in line 7; insert the phrase "or intended for use" after the word "used" in line 8; and strike out "of fluid milk or" in line 8. Since frozen desserts are not among the products defined as milk products in section 802, it would be appropriate to include them specifically among products excluded by section 813. This could be accomplished by insertion of "frozen desserts," before the words "condensed milk" in line 4. The above changes are technical and for purposes of clarity. They do not change the intent of the affected provisions of section 813 (a). It should be noted that all of section 813 (a) is redundant since the products included in the basic definition of "milk product" in section 802 (2) do not include anything enumerated in the exclusionary provisions of section 813(a). However, we understand that section 813 (a) is intended to facilitate ready understanding of the bill. 13. Section 814, page 20, lines 2-6.-In order to carry out the recommendation in the report to eliminate the dollar limit on appropriations, and to eliminate unnecessary verbiage, this section should be revised to read as follows: "SEC. 814. There are hereby authorized to be appropriated annually to the Service such sums as may be necessary to enable the Surgeon General to carry out his functions under this title." 57808-60- -2 14. Section 3 of the bill (p. 20, lines 7-14), amending section 2(f) of the Public Health Service Act to redefine the term "State".-In view of Hawaii's recent admission to statehood, the definition should be revised to read as follows: "(f) The term 'State' means a State or the District of Columbia, Puerto Rico, or the Virgin Islands, except that, as used in section 361 (d) and in title VIII, such term means a State or the District of Columbia ;". Sanitary engineering activities, Public Health Service-Milk and food program, National Milk Sanitation Act (H.R. 3840)—Estimate of cost, 1961–651 1 These estimates are in addition to the 38 positions and $365,300 now being spent for milk sanitation activities. NEED AND RECOMMENDED PRINCIPLES FOR FEDERAL MILK SANITATION LEGISLATION BACKGROUND 1 The Association of State and Territorial Health Officers and the Conference of State Sanitary Engineers, in the interest of facilitating the flow of high quality milk in interstate commerce and of preventing the use of milk sanitation requirements as trade barriers, enlisted the cooperation of the U.S. Public Health Service in a study of these problems. In accordance with the recommendation (appendix A) passed by the ASTHO at its 1957 annual meeting, and pursuant to the direction of the Association's Executive Committee on May 14, 1958, following its consideration of CSSE Resolution No. 3e (appendix B), a subcommittee of the Environmental Sanitation Committee, ASTHO, was appointed to study the matter of Federal milk sanitation legislation relating to these problems. The members of this subcommittee were: Dr. Russell E. Teague, Chairman, Mr. Alfred H. Fletcher, Dr. Henry A. Holle, Mr. Karl M. Mason, Mr. C. B. Neblett, Dr. Carl N. Neupert, Mr. Blucher A. Poole, Dr. James E. Scatterday, and Mr. Willis Van Heuvelen. 1 An official statement and recommendation of the Association of State and Territorial Health Officers adopted at its annual meeting in Washington, D.C., Oct. 20-24, 1958. Additional copies of this report may be obtained from Dr. M. I. Shanholtz, Secretary, ASTHO, Virginia Department of Health, Richmond, Va. |