The Obama Administration’s recent budget proposal for FY 2016 endorsed the concept of establishing a single federal food safety agency—reviving discussion on what has been a long-standing issue. This initiative has generated many of the same talking points that have surrounded this topic for decades, including everyone’s favorite reference to the absurdity of a system in which the Food & Drug Administration (FDA) maintains processing oversight of a cheese pizza until pepperoni is added, at which point the oversight shifts to the U.S. Dept. of Agriculture’s Food Safety & Inspection Service (USDA FSIS).
There is near universal agreement that no one would design such a system if they were working off a proverbial clean sheet of paper. While this is undoubtedly correct, it forces us to juxtapose this theoretical point against the 100+ years of oversight, policy, and paperwork generated by the FDA, FSIS, and its predecessor agencies, not to mention other relevant players such as the Environmental Protection Agency (EPA), Centers for Disease Control & Prevention (CDC), and countless other state, local, and private parties. This history raises enormous practical and political barriers to change. We have a status quo maintained by a dizzying array of interests, both public and private, scattered through various government, departments, agencies, congressional committees, trade associations, labor unions, etc.
Given the fact that the inherent logic of consolidating food safety into a single organization has never under prior circumstances been enough to overcome such obstacles, it is difficult to envision just how such change could be accomplished in today’s fractious political environment. But even if this high hurdle could be cleared, we would suggest that such change, in and of itself, would do little or nothing to alter the inherent structural differences in the American food safety system. More specifically, those who suggest that the establishment of a single food agency would promptly resolve the ancient pepperoni vs. cheese pizza dilemma are simply misguided.
The unavoidable reality is that for over a century the U.S. Congress has mandated that first meat, and then subsequently poultry and certain egg products, are to be subject to an inspection system that requires carcass-by-carcass examination of all animals to be slaughtered, continuous inspection of the products into which they are further processed, and the application of a federal mark of inspection to all such products affirming their safety and wholesomeness. No such inspection requirements are mandated for the remainder of the food supply which, at the federal level, remains under the FDA’s jurisdiction.
On a conceptual and scientific level, the agencies are moving in similar directions as the FDA’s on-going efforts to implement the requirements of the Food Safety Modernization Act (FSMA) are largely compatible with FSIS’ long-standing adoption of mandatory Hazard Analysis and Critical Control Point (HACCP) system requirements. However, to date, the FSIS’ adoption of HACCP has, to the disappointment of some, done little or nothing to lessen its basic commitment to the carcass-by-carcass and continuous inspection models. And the unusual intensity of the opposition mounted in response to FSIS’ recent, relatively modest efforts to alter its carcass-by-carcass inspection requirements for poultry is indicative of the overall resilience of the status quo.
Conversely, as the FDA continues to implement the FSMA with a budget that, at least in relative terms, is exceedingly modest, it can only look at the level of human resources available to the FSIS with a great deal of envy. Given the number of domestic food processing facilities under the FDA’s jurisdiction, not to mention the volume of imported products, the numbers (both in dollars and people) just do not add up.
Despite its theoretical merit, the establishment of a single federal food safety agency within the foreseeable future seems like a long shot at best. But if and when it does occur, such a change will not alter the fact that we have chosen to establish two fundamentally different food safety systems within this country. What it might do, however, is more clearly bring into focus the question of whether or not we should continue to do so.
Morgan, Lewis & Bockius LLP
Morgan, Lewis & Bockius LLP