Would new legislation make the food supply safer?

To follow is an excerpt from the CQ Researcher issue "Food Safety" by Peter Katel on December 17, 2010


Questions about the adequacy of federal food-safety regulation have dominated news coverage of food-borne illness outbreaks over the past 20 years. Doubts grew even more insistent following the two most recent major outbreaks.

In this year's egg contamination case, federal and congressional investigations showed that health issues were nothing new for the DeCosters' Wright County Egg operation. The farm had been declared a “habitual violator” of environmental laws by the state of Iowa as far back as 2001 and paid $219,000 in fines. [Footnote 12]

Since 2008, state inspectors had found 426 positive test results for salmonella, including 73 potential indicators of the precise strain that sickened at least 1,600 people. [Footnote 13]

Rep. Bart Stupak, D-Pa., chairman of the House Energy and Commerce Oversight and Investigations Subcommittee, and Sharfstein, the FDA official, used the September hearing as a forum to urge Congress to finish work on the food-safety legislation. Both the House bill and the similar measure the Senate passed on Nov. 30 would require the FDA to order food recalls if a company refuses to do so. They would also require all producers and processors to maintain food-safety plans covering every step of their operations. Whistleblowers in food facilities would get legal protection for disclosing information about safety violations. And imports would be subjected to the same requirements as domestically produced food. [Footnote 14]

Sharfstein argued that mandatory recall authority, as well as steady funding from fees imposed on food producers, would ensure more extensive oversight. “Here's my bottom line,” he said. “We need this bill. We need this bill to protect the safety of the food supply. We need this bill to help us prevent another egg outbreak just like the one that we've experienced.” [Footnote 15]

Changes in the food system make the legislation essential, says Marler. “If you look at the last several years, the overriding problem has been the fact that the food industry has gotten so complex, with all these inputs from a variety of places — small and larger farms — that industry was only as strong as its weakest link,” he says. “What the bill is trying to accomplish is to deal with all of it, so that industry is not taken down for the bad practices of one part of the puzzle.”

That overall benefit aside, Marler says the single most crucial part of the legislation is often overlooked in the political debate over regulatory authority. The provision (contained in both Senate and House versions) would order FDA to develop methods to rapidly track raw fruits and vegetables, enabling quick identification of the source of a contamination outbreak. [Footnote 16] “Right now, there are some states that do a great job of surveillance, like Minnesota, and others — mostly in the South — that do an incredibly crappy job of surveillance,” Marler says. The project, he says, would lead to “a more unified and efficient system for food-borne illness surveillance.”

Nevertheless, some argue that beefing up the FDA would defeat the purpose of instilling more efficiency in the food-safety process. Even the legislation's proposed requirement of a food-safety methodology known as Hazard Analysis and Critical Control Point, or HACCP — in which each step in a process where contamination can occur is rigorously monitored — would become less effective if the legislation were enacted, argues Gregory Conko, a senior fellow at the Competitive Enterprise Institute, a pro-business research and advocacy organization.

“When you get a regulatory agency involved, in order to make it at all practicable for them, you've got to make it uniform, so that regulators understand what they're looking at and how to go about enforcement and inspection,” Conko says. “Instead of allowing the plan to be highly flexible, it ends up instilling rigidities that eliminate the benefits you might otherwise have gotten.”

And mandatory recall authority likely would make the response to contamination outbreaks less effective, Conko says. “The benefit of the current situation is that when the FDA identifies a potential problem, they've actually got to go explain to the manufacturer, ‘Here's why we think the problem is in your food, and here's why we think you should engage in a recall of these lots,’” he argues. “Recalls, when they happen, are more targeted and precise. If FDA can order recalls with no pushback from industry, then political incentives will force it to order lots of recalls, even where there is limited evidence that a problem exists in a particular lot or product line.”

But advocates of the legislation maintain that the voluntary-recall system has outlived its usefulness. They point to this year's contaminated egg scandal as an example. “Having that many eggs going out to as many states as they were going to, you can't contain an outbreak” without more intensive regulation, says Elizabeth Hitchcock, public health advocate for the U.S. Public Interest Research Group (USPIRG), a consumer advocacy organization. “It's a problem that we can address by requiring more frequent inspections and by giving the FDA authority to order the recall rather than spending time negotiating back and forth, which slows down the process of getting unsafe food off store shelves and out of pantries.”

Outbreaks would still occur if FDA power were expanded, Hitchcock acknowledges. “But we can curb the spread of an outbreak and get food off shelves more quickly,” she says. “When people buy a can of whatever it is — ravioli, say — they ought to have some assurance that the food was grown safely, packed safely, and, if there is a problem, that the problem can be resolved quickly.”

But “the FDA has a tendency to shoot first and ask questions later,” argues Kennedy, of the the Farm-to-Consumer Legal Defense Fund. “For a big firm, recalling product is written off as a cost of doing business, but with small firms, just one recall can put them out of business. Giving the FDA this recall power poses risk to firms who might, in instances where there is no case of illness, still be ordered to recall a product.”

Moreover, despite evidence that the egg producers this year tolerated health hazards, Kennedy asserts that the FDA doesn't need recall authority. “If a firm thinks its products have made people ill, they're going to get them off the market ASAP,” he says. “They're looking at tremendous civil liability damages they could have to pay. The firm has an incentive to act.”

The Issues:
* Would new legislation make the food supply safer?
* Are imports a bigger problem than domestically produced food?
* Are genetic modification, livestock hormones and plastic packaging as dangerous as salmonella?

For more information see the CQ Researcher report on "Food Safety" [subscription required] or purchase the PDF.


[12] Clark Kauffman, “Supreme Court gives DeCoster partial win,” Des Moines Register, April 26, 2001, p. B6.

[13] Ibid.

[14] Adjoa Adolfo and Melissa Attias, “S 510,” CQ bill Analysis, Nov. 25, 2009; Lyndsey Layton, “Food safety bill,” (sidebar), The Washington Post, Nov. 1, 2010, p. A11.

[15] Ibid.

[16] “S. 510,” U.S. Senate, March 3, 2009, p. 74, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:s510is.txt.pdf.