Safety Delayed

MATTHEW ENIS

Despite widespread support from food producers and consumer advocacy groups, passage of the U.S. Food Safety Modernization Act hit yet another snag in Congress last month. Barring a last minute, bipartisan effort, the bill appears headed for additional debate when the House and Senate reconvene after November's midterm elections.

“We are extremely disappointed that the U.S. Senate has decided not to take up the Food and Drug Administration Food Safety Modernization Act before going to recess,” Jennifer Hatcher, senior vice president of government relations for the Food Marketing Institute, said in a prepared statement. “All of us — food industry, business groups, consumer groups — all believe this bipartisan legislation should be passed by the Senate without further delay. This is a balanced bill focused on prevention. America's consumers are counting on a public-private partnership to protect the safety of our food supply.”

Such a setback seemed unlikely as recently as mid-September. In August, eggs produced by Hillandale Farms and Wright County Egg in Iowa were found to be responsible for a multi-state salmonella outbreak that ultimately sickened an estimated 1,600 people and led to the recall of more than half a billion eggs. This latest, massive recall seemed certain to force the Senate to move on the Food Safety Modernization Act, which would expand the FDA's power to mandate safety conditions at food production facilities and fund additional inspectors for the agency. Companion legislation was passed by the House in July 2009, and a few days prior to the egg recall, the Senate announced that it had reached a bipartisan compromise agreement involving several provisions of the bill.

Ironically, details that emerged in the wake of the egg recall were partly responsible for derailing the bill this time. After the recall was announced, two employees of Wright County Egg said that they had been alarmed by the poor sanitation conditions at the facility, and had notified the U.S. Department of Agriculture employees who grade the eggs produced by the farm.

The problem? The USDA is responsible for grading eggs, while the FDA is responsible for food safety issues related to eggs. USDA graders, who are employed by the agency's Agricultural Marketing Service division, may have little experience with food safety issues. Grading eggs does not involve any microbial tests, and inspectors grade eggs at packing plants, not at laying houses, where the problems originated in this case. However, if they report any concerns to the FDA, they're required to immediately withhold their grading services until the FDA can send one of its inspectors.

Sen. Tom Coburn, R.-Okla., announced his intent to hold up the Food Safety Modernization Act last month, citing concerns about how it would be paid for, and using the case above to argue that there is currently too much overlap between the inspection responsibilities of different federal agencies.

“Specifically, [the U.S. Government Accountability Office] found that in 2003, FDA and USDA activities included overlapping and duplicative inspections of 1,451 domestic food-processing facilities that produce foods regulated by both agencies,” Coburn wrote in a memo to the Senate. “This GAO testimony came on the heels of a 2005 GAO report that identified significant overlap in food safety activities conducted by USDA and the FDA, and to some extent the EPA and National Marine Fisheries Service, including 71 interagency agreements [to coordinate overlapping activities] that the agencies entered into.”

There are undoubtedly inefficiencies that federal food safety authorities could address to save taxpayer money, but this isn't the best example. Helping U.S. farmers market and promote their products is the primary mission of the AMS. Suggesting that this particular branch of the USDA might also conduct mandatory facility inspections ignores the significant conflict of interest that such an arrangement would create.

Also, while deficit hawks such as Coburn are quick to point out that the program will cost an estimated $1.4 billion over the next five years, the bill's supporters might counter by noting that if outbreaks continue at their current pace, foodborne pathogens will account for 380 million illnesses, 1.5 million hospitalizations and 25,000 deaths in the U.S. during that time, according to FDA estimates.

The FDA currently has the capacity to proactively inspect about 25% of U.S. food production facilities each year. If problems are discovered by inspectors, the agency currently lacks the power to order a mandatory recall, or impose penalties on facilities that regularly fail inspections and do nothing to correct the problem.

For example, according to testimony before a House committee investigation of the outbreak, inspectors sent to Hillandale Farms and Wright County Egg to discover the source of this recent salmonella outbreak ultimately found salmonella present in the feed at the facilities in question, as well as lots of dead birds and live rodents, and piles of manure up to eight feet high, among other violations.

Yet, the recalls issued by both companies — during an ongoing outbreak that strongly implicated their products — were officially voluntary. Giving the FDA the power to enforce safety regulations and demand recalls are two of the primary goals of the Food Safety Modernization Act.

Supermarkets should continue to be vigilant, regardless, especially when developing relationships with new suppliers or overseas suppliers, one former retailer suggested.

“Questions need to be asked, or should be asked, when a contract is being anticipated with a given supplier,” Larry Mullen, who is now senior vice president for Newport Beach, Calif.-based insurance broker and risk adviser Marsh, told SN. “It's incumbent on most supermarkets to at least ask their procurement folks, ‘What kind of regulations are these [companies] that we are potentially becoming business partners with following? Have any audits been done? Do we have any background on these folks? Has anyone done a Google search on them?’”

And, the FDA continues to move forward on its efforts to streamline existing food safety efforts, FDA Commissioner Margaret Hamburg told SN in an interview this summer.

“We're working with an array of stakeholders, certainly USDA,” Hamburg said. “And working more closely with state and local government. We want things as integrated as possible.”

Whatever the outcome of the Food Safety Modernization Act, the agency's goal is to keep the U.S. food supply as safe as possible, to handle outbreaks and recalls quickly, and to keep the public informed when problems arise.

“A swift response is necessary, and then follow up when crisis is over to help the public understand what has gone on, and to let them know the problem is resolved and that it's not every single product in that category,” Hamburg said. “This could prevent a drop in sales that occurs after every recall.”