Egg Recall Hatches More Regulations

More FDA regulations don't always mean greater food safety.


"Never let a serious crisis go to waste," White House Chief of Staff Rahm Emanuel famously declared back in the salad days of the Obama administration. The head of the Food Drug Administration (FDA), Margaret Hamburg, is paying heed to Emanuel's maxim, using the recall of a half billion eggs to argue for giving her agency more power over food. The agency has traced the recent uptick in salmonella infections to eggs. Citing this recall, Hamburg is urging the U.S. Senate to pass the Food Safety Enhancement Act, which the House of Representatives passed last summer. 

So is the egg recall a "serious crisis"? Well, the unfortunate citizens immiserated by diarrhea and nausea from eating contaminated eggs will have obvious reasons to think so. Yet the Centers for Disease Control and Prevention's foodborne illness surveillance system finds since 1998 that rates of infection in 2009 were lower for Shigella (55 percent decrease), Yersinia (53 percent decrease), STEC O157 (41 percent decrease), Campylobacter (30 percent decrease), Listeria (26 percent decrease), and Salmonella (10 percent decrease); rates were higher for Vibrio (85 percent increase).

So why all the hullabaloo about food safety at a time when our food is less likely than ever to make us sick? The decline in foodborne illnesses was taking place even as media reports on food safety grew from about 22,000 reports in 1998 to over 60,000 last year. It's not at all surprising that this increase in news coverage, spotlighting foodborne illness in spinach, tomatoes, peanuts, and deli meats, has fueled consumer anxiety over food safety.

While the incidence of foodborne illness appears to be decreasing, might further government regulation speed up that decline and so protect public health? There are reasons to doubt it.

The Food Safety Enhancement Act would dramatically increase the FDA's role in regulating food production in the United States. The legislation would require some 378,000 food preparation facilities to pay an annual $500 fee to register with the FDA, to keep voluminous records about their safety systems, and be subject to FDA-approved inspections every year or two.

In addition, the act authorizes the Health and Human Services Department to establish an elaborate tracing system that enables the agency to identify each person who grows, produces, manufactures, processes, packs, transports, holds, or sells food in as short a timeframe as practicable but no longer than two business days. Only farmers who sell directly to consumers, fishing vessels, and grain producers would be exempt from the full traceability requirements. The new law would increase the criminal (up to 10 years in prison) and civil penalties ($7.5 million) for violating the new regulations.

The new law would enable the FDA to more widely impose hazard analysis critical control point (HACCP) regulations on food producers and processors. HACCP plans attempt to ensure food safety by elaborate monitoring and verification procedures, all copiously documented. The Washington, D.C.-based free-market think tank the Mercatus Institute notes that HACCP regulations were imposed on the seafood industry by the FDA in the mid-1990s. The goal was to reduce the incidence of the saltwater pathogen Vibrio in seafood, yet the CDC FoodNet finds that Vibrio is the only pathogen whose rate of infection has increased since 1998 (admittedly there were only 160 reported cases in 2009).

A 2009 analysis in the Review of Agricultural Economics by U.S. Department of Agriculture economist Michael Ollinger and Washington State University economist Danna Moore finds that costly HACCP regulations end up favoring larger food producers and processors. This is not surprising since only big companies have the resources to cope with the growing burden of federal regulations.

The Washington Post noted that just 192 large egg companies own about 95 percent of laying hens in the U.S., down from 2,500 companies in 1987. To the extent that the public and policymakers are concerned about industry concentration, the costs of meeting the new regulations will only exacerbate this trend toward centralizing food production and processing into the hands of fewer and bigger corporations.

While people decry big food companies and factory farming, the fact is that food safety has dramatically improved since the days of mom-and-pop butcher shops and millions of small family farms, e.g., deaths from foodborne illness have dropped more than 100-fold from 1900 to today. The act specifically exempts farmers who sell directly to consumers from the new requirements, but many small and organic farmers nevetheless oppose the legislation. They fear that the new regulations will inevitably expand to include them.

A Congressional Budget Office (CBO) analysis estimates that the new regulations would cost the government $2 billion to implement by 2014. As for the costs to the private sector, the analysis laconically reports, "CBO cannot estimate the cost to private entities of those provisions." However, Ollinger and Moore argue that HACCP regulations cost a lot more than at least one viable alternative'"setting specified performance standards and then letting companies figure out the most cost-effective way of meeting them. The two economists calculate that the paper pushing standards advocated by the FDA cost between 160 to 500 percent more than performance standards would. One cheaper food safety performance standard might be applying faster and improved tests for the presence of disease organisms in more samples of food.

Private companies have been quick to develop their own food safety programs. And they have a big incentive for doing so: They lose a lot of money when their brands and industries are caught up in a food safety problem. So companies like Walmart and McDonald's are already contracting with suppliers to meet higher standards than the government mandates. For example, both Wal-Mart and McDonald's are members of GLOBALG.A.P., a private sector organization that sets voluntary standards for the certification of agricultural products around the globe. American and Canadian produce growers are in the process of implementing their produce traceability initiative that will follow lettuce, tomatoes, and spinach from field to salad bar. Even Caroline Smith DeWaal, food-safety director of the hypercautious and self-described "food police" Center for Science in the Public Interest praised McDonald's in USA Today as being "the top of the top" in food safety.

We can expect that as the media and consumers focus more attention on food safety, that food producers and processors will respond to market demands with increasing alacrity and effectiveness. The new regulations sought by the FDA will only slow down that process while offering the illusion of increased safety.

Ronald Bailey is Reason's science correspondent. His book Liberation Biology: The Scientific and Moral Case for the Biotech Revolution is now available from Prometheus Books.

Disclosure: I grew up on a small dairy farm in Appalachia where I drank raw milk, ate eggs from our chickens, vegetables from our garden, and meat that we slaughtered and butchered ourselves, all without FDA inspection and oversight. My health was not noticeably impaired.