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F I S C A L I M P A C T R E P O R T

SPONSOR Harrison

ORIGINAL DATE

LAST UPDATED

02/06/07

02/08/07 HB 391

SHORT TITLE Ban Use of Aspartame

SB

ANALYST Hanika Ortiz

ESTIMATED ADDITIONAL OPERATING BUDGET IMPACT (dollars in thousands)

FY07

FY08

FY09 3 Year

Total Cost

Recurring

or Non-Rec

Fund

Affected

Total

$.1

see narrative

Recurring General

fund

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General’s Office (AGO)

Department of Health (DOH)

Environment Department (NMED)

Health Policy Commission (HPC)

Public Education Department (PED)

SUMMARY

Synopsis of Bill

House Bill 391 amends Sections 25-2-2 & 25-2-3 NMSA 1978 of the New Mexico Food Act to

prohibit the receipt and delivery of adulterated or misbranded food; and bans the manufacture,

sale or delivery of any food containing aspartame and its derivative compounds in New Mexico.

Aspartame is defined in the Act as an artificial sweetener with the technical name L-aspartyl-L-

phenylalanine methyl ester. Aspartame is an artificial sweetener with trademark names as: Equal,

NutraSweet and Canderel, and is an ingredient for 6,000 consumer food and beverages sold

worldwide.

FISCAL IMPLICATIONS

The additional regulatory burden to ensure products with aspartame are not manufactured, sold

or delivered into the state falls within the authority of NMED.

House Bill 391 provides no funding to regulate aspartame. NMED reports it may cost as much as

$3.75 million yearly for an additional 50 inspectors to provide inspections and enforcement,

including the monitoring of internet sales of food. The estimate is based on the assumption that a

ban could create illicit businesses for trade of aspartame creating enforcement issues. NMED’s

staff of 47 inspectors have a full workload inspect food facilities, liquid waste systems and

House Bill 391 – Page

2

swimming pools. The cost estimate does not include additional space, computers, regulatory

equipment or other items necessary to enforce the ban.

SIGNIFICANT ISSUES

The AGO reports a serious risk of litigation from opponents of this bill and the federal

government on grounds of federal preemption because the FDA has authorized the use of

aspartame in the United States. The doctrine of preemption is based on the Supremacy Clause of

Article VI of the United States Constitution. The purpose of the preemption doctrine is to allow

congress to promulgate a uniform federal policy without states frustrating it through either

legislation or judicial interpretation.

The AGO further reports state action that directly burdens interstate commerce is prohibited

where it conflicts with federal regulations, and where Congress has evidenced intent to

completely preempt the area of regulation involved. This constitutional grant to Congress under

the commerce clause of the power to regulate commerce between the states implies the

subordination of the states to that power.

PERFORMANCE IMPLICATIONS

In 1996, the US Federal Drug Administration (FDA) removed all restrictions from aspartame,

allowing it to be used in all foods with a warning that the sweetener contains phenylalanine. The

FDA receives more complaints related to aspartame than any other food additive. Recent studies

have recommended further investigation that food products containing aspartame may be

neurotoxic and carcinogenic.

ADMINISTRATIVE IMPLICATIONS

In July 2006, a proposition was brought before the Environmental Improvement Board (EIB) to

restrict the sale and use of aspartame. The EIB did not hold a hearing on this issue based on

advice from the Attorney General stating that the EIB does not have the authority or jurisdiction

to make a ruling on products containing aspartame.

PED will be required to restate nutrition rules and recommendations to ensure all food service

programs in New Mexico public schools ban products containing aspartame.

ALTERNATIVES

DOH recommends a warning be placed on all food products stating that there is a possibility that

food products containing aspartame may be hazardous to one’s health.

HPC recommends the NMED and DOH publish educational materials targeted for school age

children and the public about possible dangerous side effects of consuming products that contain

aspartame, and identify sugar substitutes that are considered safe.

AGO provides additional information relating to the following statement: “The Legislature could

consider the merits of passing a law regarding labeling, or granting express powers to an agency

to label, or granting express powers to ban the product in vending machines in public schools, or

granting express powers to an agency to make certain public service announcements.

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3

These options, in greater detail, are:

LABELING

When a state law may be construed to attempt to govern a federal government process, it must

undergo a preemption analysis. The general rule is that a state may label a product if it has a

state statute authorizing labeling and the particular label is not preempted under the Federal

Food, Drug, and Cosmetic Act. It has been played out under a series of results. On one hand,

the FDA preempted California’s attempt to label tuna cans with warnings on methylmercury. On

the other hand, states have successfully passed laws or regulations on labeling ranging from

Alaska’s requirement that farm-raised salmon be specially labeled, Iowa’s limits on the use of

the word ‘honey’ and New Hampshire’s requirement that ‘maple syrup’ be made solely from the

sap of a maple tree.

A product with aspartame already has a FDA issued warning. It reads: “Phenylkentonurics:

Contains Phenylalanine." This label is “necessary because a high plasma level of phenylalanine

is associated with mental retardation in a small number of individuals with a genetic disorder that

results in a lessened ability to metabolize phenylalanine." Proponents of an additional state

issued warning label may argue that the FDA does not intend to occupy the field of labels

because it has issued just one label and for a limited purpose. Opponents of a New Mexico

issued warning label may argue that the FDA does intend to occupy the field and the

Phenylkentonurics label is strong evidence of this action.

BAN IN PUBLIC SCHOOLS/VENDING MACHINES

There are two duplicate bills, SB 564 and HB 392 that propose to create a state Nutrition

Council. The Council’s proposed powers would be: “in consultation with nutrition experts and

the appropriate state agencies, recommend nutrition programs, public education programs and

campaigns on health, nutrition and ideal weight maintenance for all state institutions and public

schools, colleges and universities."

DOH has been working on promulgating regulations to ban junk food from vending machines in

our schools. Earlier this year, the Department’s chief medical officer has stated: “We haven’t

come to a conclusion about aspartame." Diana Heil, Nutrition Rules are changing schools

, New

Mexican, D-2 (April 15, 2006). It has also been reported that the state PED has released

“sweeping, new nutrition rules for the public schools …." Diana Heil, Nutrition Rules are

changing schools

, New Mexican, D-1 (April 15, 2006).

One or all of these entities appear to have authority to recommend nutrition requirements of food

served in public school institutions.

PUBLIC SERVICE ANNOUNCEMENTS

The Cabinet Secretary of the Environment Department is currently defined as the “director" in

the New Mexico Food Act. The law reads: “The director may also cause to be disseminated such

information regarding food as he deems necessary in the interest of public health…." NMSA

1978, § 25-2-17(B). The law adds: “Nothing in this section shall be construed to prohibit the

director from collecting, reporting and illustrating the results of his investigation." Therefore, his

announcements could likely range from educational (“Please visit the Department’s website for a

copy of the transcripts of the hearing") to providing a health warning (“Aspartame may be

harmful to public health.")

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4

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

Products containing aspartame will continue to be sold in New Mexico.

AHO/csd