Combating Foodborne Illness: The Food Safety Modernization Act

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Approximately one in four Americans get sick by foodborne illness each year [1]. Of those 76 million people, an estimated 325,000 are hopitalized and 5,000 die. Indeed, foodborne disease outbreaks reported to the CDC alone through the Foodborne Disease Outbreak Survelliance System recorded 1,247 outbreaks in 2006 [2].

The vast majority of known foodborne illnesses are associated with products regulated by the U.S. Food and Drug Administration (FDA). According to Jeff Levi, Ph.D., Executive Director of Trust for America’s Health, a non-profit, non-partisan organization working to make disease prevention a national priority [3]:

Our food safety system is plagued with problems, and it’s leading to millions of Americans becoming needlessly sick each year. The system is outdated and unable to effectively deal with today’s threats. Its current structure actually prevents the kind of coordinated, focused effort that Americans need more than ever and have a right to expect.

Supported by a grant from the Robert Wood Johnson Foundation, Trust for America’s Health recently released a report entitled Keeping America’s Food Safe: A Blueprint for Fixing the Food Safety System at the U.S. Department of Health and Human Services, which examines the problems with the U.S. Food Safety System [4]. The report identifies a number of problems with the current system, including:

Outdated laws and policies that are focused on monitoring the end of production instead of trying to detect and prevent problems along the entire production process.
Insufficient statutory authority to develop an integrated risk minimization strategy.
Lack of modernization with food safety policies largely based on early 20th-century laws.
Limited legal tools for FDA enforcment of food safety standards.
No centralized authority that has oversight and accountability.
Chronic underfunding and understaffing.
Limited federal, state and local coordination.

The report calls for the immediate consolidation of food safety leadership within the FDA under one top administrator and the creation of a separate Food Safety Administration within the Department of Health and Human Services.

The Food Safety Modernization Act of 2009

A legislative proposal to remake the U.S. food safety system is currently being deliberated and investigated by a committee in the U.S. House of Representatives. Representative Rosa DeLauro is sponsor of H.R. 875, the Food Safety Modernization Act, which seeks to establish the Food Safety Administration (FSA) within the Department of Health and Human Services to protect the public health by preventing food-borne illness, ensuring food safety, improving research on contaminants leading to food safety, and improving security of food from intentional contamination [5].

While there are many postitive aspects of the bill, such as the adpotion and implementation of a national system for the registration of food establishments (i.e. improved ability to trace the food supply) and the establishment of science-based standards for (i) potentially hazardous substances that may contaminate food and (ii) safety and sanitation in the processing and handling of food, H.R. 875 represents a significant expansion of federal regulation. The FSA would set safety regulations for food establishments and food production facilities.

And therein lies the the problem with this bill: the definitions are so broad that essentially anyone growing food could be regulated. For example, the bill defines five categories of food establishment, one of which “means a food establishment that processes all other categories of food products not described in paragraphs (5) through (7).” In addition, a food production facilty is defined as “any farm, ranch, orchard, vineyard, aquaculture facility, or confined animal-feeding operation.”

Talk about broad definitions that make no exclusions of any kind!

Internet hysteria aside, it’s tenable that small farms would be negatively impacted by this regulation. According to Food & Water Watch, a nonprofit consumer organization that works to ensure clean water and safe food in the U.S. and around the world, the issues include [6]:

Extension of electronic recordkeeping requirements to farms and restaurants.
Provision for food production facilities to pay a registration feed to fund the FDA’s inspection efforts.
Establishment of fruit and vegetable production standards and Good Agricultural Practices for produce.

These provisions would likely place a disproportionate financial burden on small farmers, making it more difficult to maintain a farm or generate a profit.

One way to avoid large-scale food contamination and widespread foodborne illness is to decentralize food production and distribution. However, the way this bill is written, the burden of regulation would effectively shut down small food producers; the end result would be the consolidation rather than the decentralization of food producers.

Another way to ensure the safety of food is to regulate food production by way of inspection. However, this method is designed to prevent food contamination altogether, not to minimize the number of infected individuals when contamination does occur. And no system, regardless of how well it is designed, will be infallible. Inspection should be one of multiple layers of security implemented by the U.S. food safety system.

Thus, while the intention of the Food Safety Modernization Act may be to fix the U.S. food safety system, it is written with definitions that are too broadly defined, leaving loopholes open for misinterpreation of the law. Further, any approach to prevent food-borne illness should encourage decentralization of food production and promote small farming, while at the same time developing an electronic tracking system to enable fast and accurate tracing of primary food supply channels. This is a formidable task given the size of the food production industry in the United States.

There are companion bills in both the U.S. House (H.R. 1332, the Safe Food Enforcement, Assessment, Standards, and Targeting Act of 2009) and Senate (S. 510, the FDA Food Safety Modernization Act of 2009), which expand FDA authority. Given the recent foodborne illness outbreaks, it’s forseeable that one of these bills is going to pass this year. Many industry groups are supporting the two bills, likely in an attempt to “avoid the structural overhall that H.R. 875 seeks to implement” [7]. Nevertheless, you should email your congressional members and ask them to oppose this poorly written piece of legislation.