For almost two decades, officials have made proposals to combine all federal food safety regulation into a single agency. Currently, a total of fifteen federal agencies have some hand in implementing a patchwork of thirty different laws addressing food safety.
The USDA and the FDA are the two primary agencies, but figuring out even their respective responsibilities is enough to make one’s head spin. The example that is often used to illustrate the byzantine nature of the current federal food regulatory system is that FDA regulates cheese pizza, but USDA is involved in regulating pepperoni pizza. FDA regulates all fish, except for catfish, which are overseen by USDA.
This illogical division of duties has serious real-world repercussions for food safety. As just one example, USDA egg graders saw the filthy conditions at a factory egg farm in 2010, but they did nothing about it because the food safety aspects were FDA’s responsibility—USDA officials were there only to grade the eggs for size and appearance. Ultimately, more than three hundred million eggs were recalled from the operation because of Salmonella, in an outbreak that sickened nearly a thousand people across the country.
The “Safe Food Act of 2015,” which would combine all food safety responsibilities into one agency, is the fifth such bill filed by Rep. Rosa DeLauro (D-CT) and Sen. Dick Durbin (D-IL). Historically, the idea has had no momentum. But the dynamics may be changing. President Obama’s budget includes a restructuring of food safety responsibilities into a single new agency within the U.S. Department of Health and Human Services (HHS). Given the makeup of this Congress, the fact that the President supports the idea makes it less likely it will pass and become law. On the other hand, it guarantees greater public attention and discussion of the issue.
Combining food safety responsibilities into one agency separate from FDA does have potential benefits. The single biggest potential advantage would be a reduction in the complexity of food regulation, creating a “one-stop shop” rather than the current complex maze. Unfortunately that advantage may never be realized. A single agency is certainly capable of creating enough regulatory mazes of its own to keep farmers and food manufacturers confused.
Even if the new agency did provide some benefits, none of the proposals address one of the most serious problems with federal food safety regulation: industry capture of the agency. The revolving door through which agency officials come from and return to lucrative private industry jobs would remain unchanged. Without serious reform of the role Big Business plays in setting the agenda for the government, shifting from multiple agencies to a single one is highly unlikely to result in any substantive changes.
The current “food safety czar” at the FDA, Michael Taylor, exemplifies this problem. For the last thirty years, he has gone from private law practice with Monsanto as a client, to the FDA, to the USDA, back to private law practice, then a four-year stint as president of public policy for Monsanto, and now back to the FDA. In his earlier stint with FDA, he co-authored the agency’s position that genetically engineered foods are “substantially similar” to non-GMO foods and thus no labeling is required; in his current position, he is overseeing the new Food Safety Modernization Act regulations, which show a very clear bias in favor of chemical and GMO agriculture. Simply moving people like Taylor from FDA to a new agency will not change what they do.
The consolidation of food safety duties in a new agency under the HHS is also unlikely to solve another major problem with food safety, namely the lack of experience or understanding of the real-world conditions of growing food. The FDA’s proposed FSMA regulations demonstrated all too clearly that the agency’s expertise in laboratory science makes for extraordinarily poor rulemaking for farms, with their complex, dynamic functions. HHS, FDA’s parent department, almost certainly suffers from the same lack of real-world experience or understanding of farms.
While the DeLauro-Durbin bill and the President’s proposal are long shots for becoming law, we can expect to see a great deal of new discussion about federal food safety in the coming year. Hopefully, we can expand those discussions to include the problems that are more fundamental than simply the convoluted bureaucracy.
The budget contains another disquieting, albeit less high-profile, move in federal food safety regulation. The FDA’s proposed budget calls for $1.17 billion for food safety programs in fiscal year 2016. The budget would include just under one billion dollars in government funding and approximately one hundred eighty million dollars in “user fees”—government fees imposed on the regulated industry for the privilege of being regulated.
User fees can create two major problems. First, they can be used to impose significant financial burdens on small-scale producers when they have done absolutely nothing in violation of the law, but simply as a cost of being regulated. Second, to the extent that the agency depends on user fees for its continued existence (and the salaries of various employees), it has yet another incentive to be overly cozy with the big industry players who pay large user fees. In essence, the regulated industry literally buys a good relationship with the agency by helping to fund it. The FDA’s estimate of the user fees for FY 2016 is seventeen times as much as it estimated that it will collect in FY 2015, raising significant concerns about how food safety regulation will be funded in this country.
This article appeared in Wise Traditions in Food, Farming and the Healing Arts, the quarterly journal of the Weston A. Price Foundation, Spring 2015