Food safety and security: what tragedy teaches us about our 100-year-old food laws.

AuthorDeWaal, Caroline Smith

ABSTRACT

The United States food safety system is antiquated and failing. The laws that form the foundation of our food protection and govern the United States Department of Agriculture (USDA) and the Food and Drug Administration (FDA) were enacted over 100 years ago. (1) While some new powers were given to FDA with the Bioterrorism Act of 2002, funding has not kept pace. (2) Safe Food International (SFI), a coalition of consumer organizations from around the world, created a set of guidelines outlining an ideal national food safety program. (3) The current system in the United States falls short of that goal. The outbreaks in 2006 and 2007 are simply the latest symptom of our outdated and failing food-safety system. (4) We need to modernize our food laws and create a strong, science-based Food Safety Administration. The Safe Food Act of 2007, introduced by Senator Durbin and Representative DeLauro, requires the development of a single food-safety agency with the power to recall food, inspect foreign food plants, and work to prevent both intentional and unintentional contamination of the U.S. food supply. (5)

TABLE OF CONTENTS I. THE FOUNDATION OF FOOD LAW A. The 1906 Laws B. The Need for Food Protection Recognized C. The Formation of Safe Food International II. ONGOING OUTBREAKS UNDER A BROKEN SYSTEM III. GAPING HOLES IN THE FOOD SAFETY NET IV. THE SAFE FOOD ACT: A MODERN SOLUTION Americans live in a fast-paced global economy. They snack on raspberries from Guatemala and mangos from the South Pacific, unaware that the safety of these foods is subject to a patchwork of oversight, both here and in foreign countries. In many parts of the world, underfunded food safety agencies do not have the ability to regulate food entering the global market. (6) The same holds true in the United States, where the laws governing food safety were enacted in 1906.

This Article will discuss the gaps in our safety net and the steps needed to address these deficiencies through a reexamination of both the statutory and fiscal underpinnings of the U.S. food safety infrastructure. Building a more effective food safety and security program requires updated food laws implemented by a unified food safety authority and built on a strong foundation of public health and science. This new agency must have strong regulatory and enforcement powers that are sufficient to address both man-made and natural threats to the food supply.

  1. THE FOUNDATION OF FOOD LAW

    1. The 1906 Laws

      The food safety laws of the United States were adopted in 1906 in response to Upton Sinclair's shocking expose novel, The Jungle. (7) Congress enacted the Pure Food and Drug Act and the Federal Meat Inspection Act (FMIA), and they were signed into law by President Theodore Roosevelt. (8) Under FMIA, meat was for the first time subject to continuous federal inspection by the United States Department of Agriculture (USDA). FMIA ensured meat safety by requiring inspectors to inspect and stamp all meat products with USDA's mark: "Inspected and passed." (9) Poultry products were added to the program in 1957, and subject to the same legal requirement as beef: carcass-by-carcass inspection at slaughter, and continuous inspection of processing plants. (10) The meat and poultry inspection programs today employ over 7,000 inspectors who visit meat plants daily. (11)

      The vast majority of foods are subject to much more passive oversight by the Food and Drug Administration (FDA). The Pure Food and Drug Act, also passed in 1906, forbade the marketing of any food containing "any added poisonous or other added deleterious ingredient which may render such article injurious to health." (12) Thus, Congress provided FDA with limited authority to act only when foods were adulterated or misbranded. Today, the FDA is responsible for regulating and inspecting about eighty percent of the U.S. food supply, including many imported foods, using this startlingly weak statutory structure. (13)

      Following September 11, 2001, Congress recognized that FDA's programs were inadequate to prevent bioterrorism. Secretary Tommy Thompson from the Department for Health and Human Services told Congress, "Am I satisfied with the [food] inspections we're doing? No, I am more fearful about this than anything else." (14) Following the terrorist attacks of September 11, 2001, Congress recognized the need to increase U.S. regulatory programs to better protect the security of the food supply. Accordingly, it passed the Public Health Security and Bioterrorism Response Act of 2002. (15) While the new law has been beneficial, recent outbreaks of contamination in spinach, lettuce, peanut butter, and pet food demonstrate that the law has not reduced the threat from natural contaminants in the food supply. (16)

    2. The Need for Food Protection Recognized

      The Bioterrorism Act gave FDA several significant new food safety authorities, along with $100 million for improvements in inspection and counterterrorism programs. (17) The agency was given authority to register domestic and foreign food firms, detain suspect food items, and require prior notice on all imported food shipments. (18) In addition, recordkeeping rules allowed FDA to require the "creation and maintenance of records needed to determine the immediate previous sources and immediate subsequent recipients of food," the so-called "One-up/One-down Rule." (19) Food companies responded by developing systems to trace food, allowing for easier recall in the event of a bioterrorist threat or foodborne illness outbreak. (20) These new systems improve upon the antiquated system of voluntary food recalls, but the problems are far from solved.

      The Bioterrorism Act focused on food security and preventing intentional contamination, but it fails to address basic food safety. Salmonella, E. coli O157:H7, Campylobactor, and many other foodborne hazards regularly show up in the food supply, causing illnesses and deaths. (21) According to the World Health Organization (WHO) report Terrorist Threats to Food, "Outbreaks of both unintentional and deliberate foodborne disease can be managed by the same mechanisms. Sensible precautions, coupled with strong surveillance and response capacity, constitute the most efficient and effective way of countering all such emergencies, including food terrorism." (22) As WHO's report made clear, food safety and security go hand-in-hand.

    3. The Formation of Safe Food International

      In June 2005, a coalition of consumer organizations from around the world gathered in Geneva, Switzerland, to develop standardized international guidelines for national food safety infrastructures. (23) Representatives of the WHO, the Food and Agriculture Organization of the United Nations (FAO), and 32 consumer organizations created the Safe Food International (SFI) principles for strong national food-safety programs, which include: (1) Food Laws and Regulations; (2) Food Control Management; (3) Inspection Services; (4) Foodborne Disease Surveillance and Investigation; (5) Recall and Tracking Systems; (6) Food Monitoring Laboratories; (7) Information, Education, Communication, and Training; and (8) Funding and Affordability of the National Food Safety Programs. (24)

      Food control management begins with a national food safety authority that manages the entire "farm-to-table" process. (25) In 2003, the FAO, in conjunction with the WHO, released guidelines for national food safety control systems. (26) The paper discussed the benefits of a unified food safety agency, including: "[u]niform application of protection measures; [the] ability to act quickly to protect consumers; [i]mproved cost efficiency and more effective use of resources and expertise; ... [the] [c]apacity to quickly respond to emerging challenges ...; and [t]he provision of more streamlined and efficient services." (27) One of the major responsibilities of the national food safety authority is the development and use of risk analysis, a three stage process that includes risk assessment, risk management, and risk communication. (28)

      Risk assessment should be carried out "openly and transparently," ensuring adequate communication between scientists and consumer groups. (29) The national food safety authority will also be responsible for setting standards and regulations, participating in international food-control activities, approving new food ingredients and novel technologies, and developing and managing a food safety inspection system. (30)

      Modern food laws and regulations, which provide the backbone of a successful food safety program, "should provide a framework for an integrated and coordinated food safety system." (31) The international guidelines recommend creating national food laws that govern inspection authority, promote the development of preventative programs for foodborne disease, and...

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