Major food safety legislation is gaining steam in Congress and – while it doesn’t directly affect poultry or meat inspection – the legislation could wind up setting precedents that will pose challenges down the road.

The Food Safety Enhancement Act of 2009, which recently passed a key House committee, focuses mostly on products regulated by the Food and Drug Administration (FDA) and gives broad new inspection and enforcement powers from production on the farm through to the final retail establishment.

Language exempts poultry

NTF and a broad cross-section of agricultural interest groups wrote to House Energy and Commerce Chairman Henry Waxman, D-Calif., and other committee members on June 15 outlining strong concerns about the bill. Because of the letter and other lobbying efforts, Waxman did agree to insert language in the bill making clear that its provisions did not apply to poultry or meat production. Creation of this “firewall” is important, as it’s not the end of the food safety debate. NTF and others still have deep concerns about precedents the bill establishes at FDA that some may try in the future to apply to USDA. 

A major area of concern is mandatory recall. The proposed bill would allow FDA to order companies to “cease distribution” immediately if the agency had “reason to believe” that the product(s) “may” cause adverse health consequences or death to humans or animals.

NTF has long stated that mandatory recall authority is not necessary and does not improve food safety. There has never been an instance under the current system where USDA has not been able to implement a recall it feels is necessary. USDA already possesses sufficient authority to remove adulterated or misbranded products from distribution. Given all this, it seems a terrible waste of legislative time and energy to create a new bureaucratic structure that ultimately may slow the recall process.

The civil penalties provision is also of concern. NTF believes that civil penalties do not enhance consumer confidence in the food supply. Again, USDA has ample authority in place that can lead to criminal prosecution and withdrawal of inspection, which are harsh deterrents to violating the law.

HACCP works now

Finally, giving FDA the ability to dictate specific elements of a food safety plan is alarming. Under the USDA inspection system each company develops HACCP plans to meet their individual plant needs; critical control points and corrective actions are based on the uniqueness of the facility. The success of the USDA HACCP model has been demonstrated amply.

Establishments must be given flexibility to tailor such programs in order for them to achieve maximum results. Dictating specific components of a food safety plan would mark a return to the very command-and-control mentality that HACCP was designed to replace.

This provision would have delegated the authority to issue such directives to FDA’s District Office Director level. The meat and poultry industry wants to continue the notice-and-comment rulemaking, which would have been eliminated under this provision because FDA would be granted the ability to regulate through guidance documents. The notice-and-comment rulemaking allows scientific risk assessment to be factored into the final decision, along with a public comment period before adopting a rule. This process is effective in reaching a final decision that is not left up to interpretation and ensures that all interested parties will be able to offer their views on issues that may vitally affect their businesses.

Reactive or proactive regulations?

While most observers would agree FDA needs new resources to inspect the foods under its jurisdiction, far too much of the bill creates new punitive powers. The opportunity to pass meaningful food safety legislation comes very rarely. The question Congress needs to ask is this: does it want to spend this opportunity passing new regulations designed to punish food safety violations after they occur, or would public health be better served by creating programs and systems designed to keep a food safety problem from occurring in the first place?