Nearly 18 months after passage of the Food Safety Modernization Act, a landmark piece of legislation that granted new powers and authority to the FDA, the legislation is still mired in congressional debates over how to fund it. If this status update sounds familliar, it's with good reason. The FSMA found itself in a similar place six months ago and a year ago.
As FSMA implementation treads water, my own latest piece of research on the subject has just been published by the Northeastern University Law Journal. It's based on a talk I gave as a panelist at the journal's 2011 food-law conference—held just weeks after the FSMA became law.
In my article, "The Food-Safety Fallacy: More Regulation Doesn't Necessarily Make Food Safer," I use ancient and more recent historical examples of flawed rules to rebut the common misconception that more food-safety regulation means safer food. Rather, history shows us that food-safety regulations have often made food (and, consequently, people) less safe.
How can a food-safety regulation make people less safe? There are several ways. You'll want to read the entire article if you'd like more examples, but I think these three should suffice to illustrate my point.
First, a flawed food-safety regulation can prevent people from gaining access to a healthy food. In 18th century France, the country's parliament banned consumption of the potato. Among the host of diseases the govenment mistakenly attributed to consumption of the tuber was leprosy. This was particularly problematic because at the time France's government issued the potato edict, the country was in the midst of a famine.
Potato-loving Francophile Thomas Jefferson would have witnessed the ban firsthand. He later condemned it in strong terms in a famous passage from his Notes on the State of Virginia, in which he lays out his vision of the regulatory authority of government as pertains to religion, food, and medicine:
The legitimate powers of government extend to such acts only as are injurious to others. . . . Was the government to prescribe to us our medicine and diet, our bodies would be in such keeping as our [British-subjugated] souls are now. Thus in France the emetic was once forbidden as a medicine, and the potato as an article of food.
As I note in my article, "It took the efforts of one Frenchman whose life had been saved by the potato to reverse the ban."
Another way that a food-safety regaultion can make people less safe is when the rule actively promotes the spread of disease. A perfect illustration of this can be found in the USDA's 90-year meat-inspection scheme—labeled "poke and sniff" by critics and supporters alike—that the agency replaced only in the 1990s.
Poke-and sniff often entailed having an inspector “poke” a piece of meat with a rod and “sniff” the rod to determine, in the inspector’s opinion, whether the meat contained pathogens. This method meant that the hands, eyes, and noses of inspectors were to be literally the front line of the USDA’s food-safety regime.
The problem? "[I]f a piece of meat was in fact tainted but the inspector’s eyes or nose could not detect the contamination after he poked the meat, the inspector would again use his hands or the same rod to poke the next piece of meat, and the next, and so on."
This approach likely resulted in USDA inspectors transmitting filth from diseased meat to fresh meat on a daily basis. Food may actually have been safer when the USDA failed to regularly inspect some plants for a mere three decades.
Related to this latter point, the third way in which a food-safety regulation can make people less safe is when the regulation attaches a false veneer of safety to a particular food based on the public's misplaced faith in the ability of regulators to ensure food is safe.
The summer 2010 recall of hundreds of millions of eggs due to negligent USDA oversight at the laying facility—even as the agency's egg graders provided the public with the false veneer of food safety—is a perfect illustration.
While the FDA used the recall to argue for more authority to inspect egg-laying facilities, the truth is that USDA egg graders already on site simply dropped the ball when it came to ensuring the eggs they graded were safe. The USDA was quick to refute the charge its graders had any duty or authority to oversee the sanitary quality of the facilities in which they worked, but