Biotechnology

Egg Recall Hatches More Regulations

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

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“You never want a serious crisis to go to waste,” former White House Chief of Staff Rahm Emanuel famously declared. The head of the Food and Drug Administration (FDA), Margaret Hamburg, is paying heed to Emanuel’s maxim, using the recall of a half billion eggs to argue that her agency should have more power over food. Over the summer, the agency traced an uptick in salmonella infections to eggs. In the wake of the resulting recall, Hamburg urged the U.S. Senate to pass the Food Safety Enhancement Act, which the House of Representatives approved in the summer of 2009.

Is the egg recall a “serious crisis”? The unfortunate citizens immiserated by diarrhea and nausea from eating contaminated eggs will think so. Yet the Centers for Disease Control and Prevention’s foodborne illness surveillance system finds that from 1998 to 2009 rates of infection have declined for shigella, yersinia, STEC O157, campylobacter, listeria, and, yes, salmonella. The only notable foodborne disease that saw its rates go up was vibrio. That does not sound like a situation that demands sweeping new legislation.

So why all the hullabaloo about food safety at a time when our food is less likely than ever to make us sick? Researchers at the Mercatus Center at George Mason University searched the Google news archive and found that, at the same time that the decline in foodborne illnesses was taking place, the number of media reports on food safety grew from about 22,000 in 1998 to over 60,000 last year. It’s not at all surprising that this increase in coverage, spotlighting tainted spinach, tomatoes, peanuts, and deli meats, has fueled consumer anxiety over food safety.

OK: So foodborne illness seems to be decreasing. But maybe further regulation would speed up that decline and better protect public health, right? There are reasons to doubt it.

First let’s review what the new law would do. 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 facilities to pay an annual $500 fee to register with the FDA, to keep voluminous records about their safety systems, and to be subject to FDA-approved inspections every year or two.

In addition, the act authorizes the Department of Health and Human Services to establish an elaborate tracing system. The aim is to let the agency 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 fishing vessels, grain producers, and farmers who sell directly to consumers would be exempt from the full traceability requirements. The new law would increase the criminal penalties (up to 10 years in prison) and civil penalties (fines of up to $100,000 for individuals and $7.5 million for corporations, regardless of their size) for violating the new regulations.

The new law would also enable the FDA to impose hazard analysis critical control point (HACCP) regulations on more food producers and processors. HACCP plans attempt to ensure food safety through elaborate monitoring and verification procedures, all copiously documented.

The FDA imposed HACCP regulations on the seafood industry 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 the U.S. Department of Agriculture economist Michael Ollinger and the 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.

Just 192 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 policy makers 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 the new requirements do exempt farmers who sell directly to consumers, many small and organic farmers nevertheless oppose the legislation. They fear that the 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.” 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 simple 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 Wegmans and McDonald’s are already contracting with suppliers to meet higher standards than the government mandates. 

Both businesses, for example, 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 Center for Science in the Public Interestâ€"the self-described “food police”â€"praised McDonald’s in USA Today as being “the top of the top” in food safety.

As media and consumers focus more attention on food safety, we can expect food producers and processors will respond to market demands with increasing alacrity and effectiveness. The new regulations sought by the FDA will only displace speedier consumer-driven private sector efforts while offering the illusion of increased safety. 

Ronald Bailey is reason's science correspondent and the author of Liberation Biology: The Scientific and Moral Case for the Biotech Revolution (Prometheus Books).