Legislative Outlook for 2004

Bipartisan actions such as a law authorizing the Federal Trade Commission (FTC) to establish a “do not call registry,” anti-spam legislation, and legislation expanding federal drug prescription benefits under Medicare were the exceptions, not the rule, during the first term of the 108th Congress.

With the 2004 presidential election and 34 Senate seats up for reelection, the partisan tone is not likely to diminish. Indeed, the second term of the 108th Congress will begin on January 20 with an effort by the Republican majority to end debate on H.R. 2673, a bill to fund most non-military governmental operations for 2004.

The budget vote likely will set the early tone for the session, as will the ongoing acrimonious debate over judicial nominations and the procedures by which they are approved. Major issues facing Congress on its return likely to be of interest to converters include energy, security initiatives, and obesity initiatives. A brief summary follows.

H.R. 6, the Energy Policy Act of 2003. Intended to enhance energy conservation and research and development, and to provide for security and diversity in the nation's energy supply, this bill would address natural gas shortages by providing tax incentives for increased production, streamline the drilling permit process, and encourage construction of a natural gas pipeline from Alaska. The bill passed the House April 11, 2003, and the Senate with amendments on July 31, 2003. The competing provisions were reconciled, and the conference report, H. Rept. 108-375, was approved by the House on Nov. 28, 2003.

The key obstacle to passage of the conference report in the Senate is a provision championed by House Majority Leader Tom Delay (R-Texas) that provides liability protection for producers of the gasoline additive methyl tertiary butyl ether. The conference report omits provisions sought by the Administration to open the Arctic National Wildlife Refuge for oil and gas development or to lift a moratorium on oil and gas exploration in protected areas of the Outer Continental Shelf. Senate provisions requiring utilities to produce 10% of their energy from renewable sources were rejected, as were provisions to address global climate change.

S. 994, Chemical Facilities Security Act of 2003. Introduced by Senators James Inhofe (R-Oklahoma) and Zell Miller (D-Georgia), S. 994 would require selected chemical storage facilities to conduct a vulnerability assessment and develop and implement a site security plan that addresses the facility's vulnerability to a terrorist release.

The bill was scheduled for markup by the Senate Environment and Public Works Committee on May 15, 2003, but was removed from the calendar when Republicans and Democrats on the Committee failed to reach consensus. Environment Committee Republicans since have negotiated and distributed to the committee a compromise proposal that would require, but not mandate, chemical plants to consider using safer technologies and less toxic alternatives, the approach favored by Senator Jon Corzine (D-NJ) but opposed by industry.

Corporate Information Security Accountability Act. Representative Adam Putnam (R-Florida) has put on hold a draft bill requiring publicly traded US corporations to conduct annual, independent security audits of their information systems, a Sarbanes-Oxley-type measure for computer systems. An ad-hoc business and technology working group is scheduled to report back to Representative Putnam early in 2004 on specific recommendations to increase business sensitivity to cybersecurity without legislation.

H.R. 3444, Menu Education and Labeling Act. Senator Joseph Lieberman recently announced that as president, he would push the FTC to address child obesity by requiring junk food advertising and packaging to include parental warnings in the form of a rating system. He would ask Congress to require restaurant chains of 20 or more establishments to include nutritional information on menus and mini-boards as currently envisioned by H.R. 3444. The flip side includes bills to limit the exposure of food manufacturers to obesity lawsuits. Also on the table are measures to limit class action lawsuits and other broader tort reform bills.

This year should prove interesting legislatively, with action hinging on external events, the economy, personalities, and the still-evolving political landscape in the runup to the elections.

This year should prove interesting legislatively, with action hinging on external events, the economy, personalities, and the still-evolving political landscape…

Sheila A. Millar, a partner with Keller and Heckman LLP, counsels both corporate and association clients. Contact her at 202/434-4143; This email address is being protected from spambots. You need JavaScript enabled to view it.; PackagingLaw.com.

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