One food safety agency to rule them all? For decades the U.S. Government Accountability Office (GAO) has called for a single federal agency to oversee food safety. And now President Trump, through the White House’s “Delivering Government Solutions in the 21st Century” plan, has recommended it as well.
The Food Safety and Inspection Service (FSIS), under the U.S. Department of Agriculture (USDA), ensures the safety of meat, poultry, processed egg products, and catfish. The Food and Drug Administration (FDA) under the U.S. Department of Health and Human Services (HHS) has responsibilities over most of the rest of our food supply. Now, throw in the National Marine Fisheries Service (Department of Commerce) and U.S. Fish and Wildlife (Department of the Interior), Transportation Safety Administration and the Department of Transportation and you started to cook up a serious brew legally, politically and economically. Domestic agencies aside, a significant amount of food consumed in this country is imported or made from imported materials – so you must stir in how these domestic agencies interact with our international trade obligations and the U.S. Customs and Border Protection (Department of Homeland Security), which enforces all the other agencies’ requirements at the over 300 ports of entry.
Previous critics of the current multi-agency approach have advocated for a variety of one-agency solutions, such as creating a new independent agency or combining all food safety duties under the FDA. The President’s proposal is to house all food safety responsibilities within USDA and call it the Federal Food Safety Agency.
This is not a new idea, clearly – and it seems something should be done. But the reason it hasn’t happened is more about power and money than anything else. Surprised? One of the lesser, though more important, roadblocks involves the opposite regulatory approaches and statutory schemes implemented by the two key agencies to achieve safety. There are significantly different approaches to food safety within FSIS and FDA, which would be difficult to reconcile. And depending upon the direction one throws the federal food safety mandate, the choice could pose serious economic burdens that would trickle down to every U.S. consumer of food – which is, well, every single person on U.S. soil.
For instance, FDA, with a few exceptions, allows food to be distributed without advance review, approval or permit. FDA makes extensive use of risk-based monitoring (inspections and testing), which lets it prioritize resources where they are most needed. By contrast, FSIS requires permits and prior approvals for the foods they manage. FSIS stations inspectors at thousands of slaughter and processing plants throughout the country. For FSIS-regulated meat, poultry and egg products to be imported, the foreign countries where they were raised, grown, slaughtered and processed must be designated equivalent to the U.S. with respect to controlling the risk that imported materials may introduce a disease or pest that could damage U.S. agriculture interests. The FSIS model requires significantly more resources to manage food safety compliance than does the FDA model. If the proposed new agency used the FSIS model, then the new requirements imposed on all the now-FDA-regulated foods would literally break the bank. So, some new regulatory regime operated by FSIS would have to be established – and now you have the political and international trade objectors’ respective attentions.
Of course, the really (really) big political hurdle is in Congress. The committees, congress-persons and senators (and staffers and lobbyists) involved in setting the regulatory policy and budgets of these agencies have become so deeply entrenched that they now represent some of the most powerful political positions in Washington, D.C.
Is This Likely to Occur?
Ensuring a safe food supply for the nation is of utmost importance to every person in the U.S. – every single one; from the youngest to oldest, the fittest to the fattest, the healthiest to the sickliest, richest to the poorest; no matter the sociological, economic, racial, ethnic, religious or political background or persuasion. Everyone cares about the success of a food safety regime. But in the background, the political and financial actors will rule the day. Any reorganization would require elected officials to vote power (and money) away from themselves to come to any semblance of a system that is more unified. And, the industry interests (both domestic and international) will throw unbelievable amounts of money to have nothing change if at all possible. Of course, the agencies will resist as well, because each has its own fiefdom, and no one likes losing a fiefdom.
Attorney Ben England notes, “Therefore, it seems unlikely this initiative would gain enough momentum to move forward during this term. This is not a first-term issue but seems more like a second-term trial balloon. However, if President Trump is reelected, then it is possible Congress could proceed to find some ways to reduce the duplicative efforts of the many federal agencies involved in food safety.” He then emphasized, “Our food supply will not be safer under one agency, but would certainly be more expensive under the USDA regime.”
The House Committee on Oversight and Government Reform held its first hearing on this and other aspects of the Trump administration’s plan last week. We will continue to follow this story. Whoever regulates your food, you will find our consultants and affiliated attorneys representing our clients before the relevant agencies, achieving for them the best of all possible outcomes. Contact us today with your food safety, food regulatory compliance, food import and export questions and needs.
