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From: Food Quality & Safety magazine, December/January 2013

Is It Time for the Next Major Food Safety Overhaul?

by Shawn K. Stevens

Author’s Note: Special thanks to Joel Chappelle, a food safety professional in our firm, for his continued research and contributions to our food safety columns. Joel has worked with us for many years, assisting food companies throughout the nation.

Our national food safety system traces its origins to the beginning of the 20th century, when there was virtually no oversight of our food production.

In response to a growing movement questioning the quality and safety of meat products, Congress enacted the Wholesome Meat Act in 1967, and the USDA hired and deployed federal inspectors to slaughter plants throughout the nation. The federal inspector’s job was to ensure through visual inspection that our food was being produced under sanitary conditions. Today, these inspectors remain in every federally inspected meat and poultry establishment in the country. While their mission has not changed significantly, the environment in which they accomplish it has.

Scientific and technological advances over the past century have revolutionized our understanding of pathogens and the causes of foodborne illness. Microbiologists, physicians, veterinarians, farmers, government regulators, and engineers have all worked together to develop the most effective food safety apparatus yet. The results have been largely responsible for a substantial decline in the number of foodborne illnesses in recent years.

In spite of the improvements, increased scrutiny has been placed on the food industry by the public, the media, and politicians, many of whom argue that even a single foodborne illness is entirely unacceptable and that more must be done regardless of the difficulties involved in detecting and preventing the presence of microscopic organisms.

The government answered these calls, in part, with the recent passage of the Food Safety Modernization Act. The act, which legislates the largest expansion of the FDA’s food safety authority since the 1930s, has been hailed as the most comprehensive piece of food safety legislation ever enacted. It seeks to radically transform the regulatory landscape for thousands of American and international food companies through the implementation of new requirements and a broad inspection apparatus ostensibly designed to ensure the safety of American food.

Unfortunately, the new legislation is, at least for now, effectively stalled. Many foresaw the difficulties in implementing the FDA’s wide-reaching reforms and, almost immediately upon passage of the law, began asking where the FDA would acquire the resources necessary to implement its dramatic reforms.

Government will still play a critical role in the design and implementation of an overhauled food safety system. But, it may be time to come to terms with the reality that pragmatism and science, rather than bureaucrats and legislation, make food safer.

At a recent conference hosted by the International Association for Food Protection in Providence, R.I., participants were told by an FDA spokesperson that many of the FSMA regulations had not yet been finalized. In addition to budgetary shortfalls, substantial trade difficulties are rumored to have arisen over requirements placed on foreign establishments. He further explained that, despite the lack of progress, everything under the new FSMA remains in a “deliberative phase.” What that means remains to be seen.

What is clear is that concerns over another international economic collapse, spiraling national debt (which has already resulted in, among other things, the U.S. losing its AAA credit-rating), and the realization that government spending must be reined in immediately have resulted in what amounts to the possible economic infeasibility of the FSMA in its current form.

Critics have long argued that the government’s tendency to throw money, rather than solutions, at difficult problems would result only in a bureaucratic colossus. That now seems to be the case. The Government Accountability Office, for instance, recently identified as many as 15 separate federal agencies collectively administering at least 30 laws related to food safety.

Consider that in the U.S. Senate, the committees on agriculture; nutrition; forestry; homeland security and governmental affairs; and health, education, labor, and pensions are all actively involved in making decisions relating to food safety. In the U.S. House of Representatives, the committees responsible for making decisions include agriculture; energy and commerce; over­sight and government reform; and science. Agriculture subcommittees of the House and Senate Appropriations Committees also play oversight and funding roles in how the major agencies carry out food safety policies. The potential for waste and redundancy under such a system is obvious.

In 2011, the FSIS received more than a billion dollars in appropriated funds, plus another approximately $150 million in industry-paid user fees. Yet, these two organizations have jurisdiction over only 10% to 20% of the U.S. food supply. FSIS employs a staff of more than 9,000 workers, approximately 8,000 of whom work in the roughly 6,300 meat slaughter and/or processing plants nationwide.

Processing inspection does not require inspectors to remain on the production line constantly or to inspect every single food product. Rather, inspectors are tasked with the responsibility of verifying a plant’s adherence to its HACCP program, examining its standards for sanitary conditions, ingredient levels, and packaging, and conducting occasional microbiological sampling.

Perhaps, the time has come to change the way we think about food safety. And, perhaps, nothing less than a complete overhaul of our national food safety apparatus would allow us to take the next big step forward.

How It Would Work

We have arrived at a fork in the road to safer food and are faced with the choice of continuing on the path we’ve taken—adding more rules, regulations, and oversight with the hope that we will reach a point at which foodborne illness disappears—or going in a different direction. The law of diminishing returns tells us that that in all productive processes, adding more of one factor of production (regulations and inspectors) while holding all others constant will at some point yield lower per-unit returns.

Thus, the real solution to this problem will most likely be achieved scientifically, not bureaucratically. Continuing to spend enormous sums of money on redundant, antiquated, and ineffective solutions is irresponsible and self-indulgent. Inspectors and laws are incapable of seeing microscopic pathogens. Government will still play a critical role in the design and implementation of an overhauled food safety system. But, it may be time to come to terms with the reality that pragmatism and science, rather than bureaucrats and legislation, make food safer.

Critics have long argued that the government’s tendency to throw money, rather than solutions, at difficult problems would result only in a bureaucratic colossus. The GAO, for instance, recently identified as many as 15 separate federal agencies collectively administering at least 30 laws related to food safety.

The first step in setting an overhaul into motion should be the formation of an independent panel that is tasked with a top-down review of government food safety expenditures that focuses on waste and redundancy. Simultaneous studies aimed at identifying and developing a more streamlined inspection apparatus should be commissioned by experts in the field of science, technology, agriculture, and engineering.

Technology is increasing at a rate never before seen. Government should, for the first time in history, set the table for new discoveries in anticipation of the continued occurrence of existing and emerging pathogens. There are enormous changes on the horizon as a result of globalization, possible climate change, and financial challenges across the world. The results of these changes will lead to a far more dynamic environment surrounding the food industry. If we do not substantially modify our food safety systems, it is likely that neither the food industry nor government will be able to effectively address new and emerging issues relating to food safety.

In turn, many of the problems we face are likely better addressed by privatizing parts of the U.S. food inspection system. American companies have long partnered with industry through auditing, consulting, and inventing to bring cutting-edge technology into food processing environments.

Moreover, we are seeing a dramatic increase in the amount of imported food we consume. This trend is expected to continue into the foreseeable future. The lack of jurisdiction held by the FDA and USDA outside of the U.S. poses a unique problem that could be solved quickly if the government allowed U.S. companies to conduct inspection and verification activities on its behalf.

The inspectors themselves would have to be drawn from those currently working for the USDA and FSIS, providing what would essentially be a lateral transfer from the public sector to the private. Companies interested in doing the inspections would bid on the jobs, thus providing the best cost-effectiveness ratio possible while simultaneously promoting private sector research.

The infrastructure is already in place to begin implementing privatized inspection. The FSMA, which is currently stalled partly because of its massive size, provides a perfect place for government to begin transitioning inspection responsibility to the private sector. This solution would address the food safety concerns that the FSMA hoped to solve, while at the same time allowing private sector creativity and ingenuity to generate the most cost-effective means of implementing the law. As it stands today, the law is untenable. Privatization provides a means to enact the legislation and save money doing it.

The emergence of new technologies allows for faster, better communication, more effective microbiology, and improved food safety. Indeed, the calls for increased inspection are rapidly outpacing the capacity of government to implement them. Privatizing inspection with governmental oversight makes sense. It is likely that the necessity for in-line human inspection will soon be obsolete as advances in affordable robotics, information technology, and optics begin to outpace human capability.

We have seen more technological advances in the past 100 years than in the previous 50,000. All indications are that this exponentially increasing rate of growth will continue for the next century and beyond. This technological explosion, if continued at current rate, suggests that the changes in the next 20 years will exceed the collective advances of the entire 20th century. The prospect of such immense change is difficult for most people to grasp, but empirical data are difficult to dispute. If it is even close to accurate, the vast advances currently on the horizon in information technology, medicine, robotics, and nanotechnology could result in an end to disease, foodborne illness, and perhaps even world hunger.

It is incumbent upon us to maximize the implementation of technologies that can prevent illness, yield more food, and preserve resources. Allowing government to continue to bloat and expand while providing diminishing returns is inefficient, ineffective, and counterproductive. Technological, scientific, agricultural, and socio-economic changes have reached a confluence where great changes are not only possible but also necessary. Now is the time to act if we truly want to modernize American food safety.


Shawn Stevens, an attorney at Gass Weber Mullins LLC in Milwaukee, Wis., counsels food industry clients nationally on food safety regulatory and liability issues. He can be reached at stevens@gasswebermullins.com or (414) 224-7784.

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