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Food Safety Suffers During U.S. Government Shutdown

U.S. Government ShutdownThe partial U.S. government shutdown, now in its second week, has already started affecting the operations of the Food and Drug Administration (FDA). Hardest hit are the FDA operations related to foods. Consequently, food importers, retailers, and consumers should be concerned.

The shutdown will have lesser effects, at least in the short-term, on the FDA divisions that deal with human drugs, animal drugs, medical devices, and tobacco, as each of these divisions collects some type of user fees, giving those divisions a buffer when government funding is unavailable, as is the case during the shutdown.

In contrast, no such user fees exist with regard to FDA’s food-related operations. Effective lobbying by industry removed user fees from the final version of Food Safety Modernization Act (FSMA) and has kept them out annually whenever such fees have been proposed. For better or worse, this leaves FDA’s food safety operations progressively more vulnerable the longer the government shutdown lingers.

Functions such as food facility inspection, inspection of some imported foods, follow-up inspections after implementation of corrective action plans (CAPs), and review of petitions for removal from FDA Import Alert are all suffering due to the shutdown. This is especially worrisome when we take into account that 20% of vegetables, 50% of fresh fruits, and a whopping 80% of all seafood consumed by Americans are imported from abroad.

The Dept. of Health and Human Services (HHS), of which FDA is a part, recently published its contingency plan for handling the government shutdown in a document entitled “Contingency Staffing Plan for Operations in the Absence of Enacted Annual Appropriations.” Under this plan, 45% of FDA’s almost 15,000 staff members have been furloughed. FDA is doing what it can to keep staff that deal with food imports and food safety in place, but has announced that FDA resources will be focused “as necessary for the protection of human life.” With regard to food recalls, this means that Class I recalls will most likely continue on schedule, but places in doubt whether Class II or Class III recalls will be initiated during the shutdown.

Anyone who regularly deals with FDA’s Center for Food Safety and Applied Nutrition (CFSAN) or the Division of Import Operations and Policy (DIOP) knows that, even during normal times, staff at both entities is stretched thin. No matter what your political position may be with regard to the government shutdown, we can all agree on one thing: Our food does not get safer with fewer FDA inspectors and compliance officers on the job. Hopefully it will not take a food-related tragedy to put a stop to the game of political chicken currently taking place in Washington, DC.

Edgar J. Asebey-BirkholmEdgar J. Asebey-Birkholm, Esq.
Partner & FDA Practice Group Manager
Roetzel & Andress
easebey@ralaw.com
www.ralaw.com
(954) 759-2754

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