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When it Comes to Food Safety, Congress Hasn't Put Its Money Where Its Mouth Is

when it comes to food safety, congress hasn't put its money where its mouth is

While not small in its effect, the Salmonella outbreak connected to Fig & Olive restaurants in Washington, D.C. and West Hollywood, Calif., likely stems from a traditional sort of food contamination.

The impact of the outbreak is wide because the restaurant uses a central kitchen to prepare the food served in its restaurants in several states. And in the age of industrialized agriculture, foodborne illnesses not only occur often, but they also affect more places and people at once and can be difficult to retrace, said Cristina Stella, a staff attorney at the Center for Food Safety who works on related food policy issues.

“I think industrial agriculture makes it incredibly difficult to prevent contamination completely,” Stella said. “It used to be that someone didn’t wash their hands in a restaurant kitchen.”

Every year, 1 in 6 Americans contracts food poisoning, according to the Centers for Disease Control and Prevention. Recently, a Salmonella in imported cucumbers sickened 767 people in 36 states as of Oct. 13.

In September, a former executive of the Peanut Corp. of America was sentenced to 28 years in federal prison after being convicted of knowingly selling peanut butter contaminated with Salmonella. The outbreak in 2009 sickened 714 people and was linked to the deaths of nine others.

Criminal charges in food safety cases are becoming more common, said Bill Marler, an attorney with Marler Clark that specializes in suing on behalf of food poisoning victims. He’s worked on cases of food contamination for 22 years. In the last five, he’s seen three or four instances of misdemeanor charges, which can occur when contaminated food crosses state lines. It becomes a felony when prosecutors can prove, like in the PCA case, that someone knew about the problem and shipped contaminated food.

“You’re starting to see the fed become more active,” Marler said.

Marler and Stella each said the Food Safety Modernization Act is the best hope in the U.S. for cutting down on the number of outbreaks. (And, consequently, the number of deaths, which reach 3,000 a year, the CDC estimates. So far, 157 people were hospitalized in connection with the Salmonella cucumber outbreak. Four people have died.)

As legislation, FSMA is almost five years old and is widely considered landmark legislation because it is the first major overhaul of food safety policy since 1938. But after it passed and was signed by President Barack Obama in January 2011, nothing really happened. The Food and Drug Administration missed several implementation deadlines over two years before the Center for Food Safety was able to use the courts to compel action.

Now they’re meeting deadlines but the process is painfully slow.

Under FSMA, FDA has a comprehensive plan that would totally alter the agency’s approach to food safety. In a nutshell, rules would shift the focus to preventing outbreaks instead of waiting to respond to them. New authority bestowed on FDA gives the agency power to force recalls when contamination is found and a company doesn’t act, among other new mandates.

FSMA extends to produce handling, human and animal food manufacturing, transportation, and food importation. Imported produce from countries, such as Mexico, has harmed thousands of American consumers over the years.

After two years of compiling data and input from stakeholders, FDA released two finalized rules last month concerning human and animal food manufacturing. It requires producers to assess hazards that could lead to contamination and establish plans for responding to an outbreak if it occurred.

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At a Congressional committee hearing following the rules, Dr. Stephen Ostroff, acting FDA commissioner, pointed to the recent Listeria outbreak in Blue Bell ice cream to explain the agency’s added power. He said safety protocols in ready-to-eat products like ice cream call for sanitation plans and procedures that ensure Listeria doesn’t thrive there. Those procedures should include regular testing and monitoring.

“Under the pre-FSMA food safety system, however, no such plans, procedures or monitoring were specifically required. The burden rested on FDA to find the problem, through inspection or, as in this case, via reports of product contamination and illness,” Ostroff said. “FDA was basically in a reactive mode, with the burden on FDA to find problems, often investigation problems after the harm was done. … Under FSMA and the preventive control rules FDA issued last week, we now have requirements for sanitation controls, environmental monitoring, and corrective actions that will apply to facilities making ready-to-eat foods such as ice cream.”

So why isn’t the outlook of food safety in the U.S. bright and shimmering?

Since FSMA’s passage – at which time it was estimated full implementation would cost $583 million by 2015 – money has not followed rhetoric. In the next fiscal year, FDA likely will receive less than half of the President’s proposed budget increase to fund FSMA. And the official request was only half of FDA’s recommendation. The agency’s need and Congress’ allowance are more than $200 million apart.

To any agency, that’s a huge blow. But food safety specifically is a “resource intensive” field because it is highly technical and requires a lot of training, Stella said.

Ostroff told the Senate subcommittee that funding is critical to FSMA's success.

But outbreaks cost money, too. A lot of money. Marler’s isn’t the only law firm dedicated to making companies pay when their food makes people sick. So companies have a motivating factor to take up FSMA’s preventive measures.

Then there is the cost of human life. Outbreaks don’t discriminate. Everyone has a stake in food safety because everyone eats, Stella said. She and Marler and many others believe FSMA has the focus and the methods to really make a difference.

“The FSMA rules are right,” Marler said. “It’s a matter of getting enough funding to get it to work correctly so we avoid outbreaks.”

By May 2016, all the FSMA rules should be finalized. After that, without full funding, who knows?

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Food production photo via Shutterstock

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