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Food Safety Solutions: Look At Legal System, Industry Incentives And Effective Government

We’ve written a lot about food safety over the years. We covered the Great Spinach Crisis of 2006 and the Salmonella Saintpaul tomatoes, no wait, chili peppers crisis, the FDA Import Alert on Honduran Cantaloupes, issues such as Botulism and Carrot Juice, The Great Pistachio Recall and, of course, issues with Sprouts; we looked at the Buyer-Led Food Safety Initiative, efforts of the Food Safety Leadership Council, and we reached out to foodservice operators to find out their perspective on food safety. We looked at efforts the National Restaurant Association made in this area and looked at related issues such as Irradiation and Traceability.

As we have thought about these issues and the broader area of food safety, we have come to conclude that much of the thinking in this area is limited because it doesn’t really focus on incentives.

Most of the “food safety community” is composed of either technical people — those looking for the actual solutions — or legal people — those dealing with working within the law. The community lacks business executives who focus on the power of incentives.

When there is a problem, the world quickly divides between industry groups, typically urging self-regulation and various advocacy groups urging government action.

Very often, the industry winds up supporting action by the federal government for a variety of reasons: For example, the industry typically wants uniform standards, not every state doing its own thing.

In food particularly, the industry has thought the idea of a government agency that consumers trust to declare all food safe is a great industry asset.

Now with the recent recalls on Romaine and Sprouts, food safety related to fresh produce is back in the news and advocacy groups are pushing for new laws.

We think there is a place for government in food safety matters, but, inevitably, safer food production has to be done by industry and we find much of the discussion around food safety to be too narrow.

It reminds us of nothing so much as the Kellogg-Briand Pact, an international treaty signed in 1928 that prohibited the use of war as a tool of policy.

Note the year of the treaty, to which the United States and other countries, including Germany, Japan, France and the United Kingdom, are still bound. Obviously the treaty didn’t prevent World War II or any subsequent conflict.

That inclination, to see a problem and want to outlaw it, is much of the same impulse behind the food safety legislation awaiting Senate action. It is focused on giving government more authority — mandatory recall power, for example — without any indication that these things will actually improve food safety.

We think there is a way to improve food safety and it has precious little to do with giving the FDA more power. We weighed into this public policy debate in an “online exclusive” published by an important journal based in Washington, DC, The New Atlantis: A Journal of Technology & Society:

The recent recall of fresh-cut romaine lettuce processed in an Ohio facility by a company called Freshway Foods has given a new rallying cry to activists trying to spur quick Senate passage of the FDA Food Safety Modernization Act. The Center for Science in the Public Interest (CSPI), a self-proclaimed consumer advocacy group, made this statement:

While consumers wait for Congress to pass food safety legislation, the plants that process and bag lettuce and the farms that grow it are operating under an industry honor system which clearly failed in this case. The FDA can’t tell us when it last had inspectors in the plant where this lettuce was processed. Congress urgently needs to give the FDA the resources and authority from the farm forward, transforming it from a reactive agency to an agency focused on preventing contamination.

Freshway is conducting this recall on a voluntary basis, because — even with the presence of this serious food safety hazard — FDA lacks the ability to order a recall. Giving the FDA mandatory recall authority is another reason why the Senate should bring S. 510, the FDA Food Safety Modernization Act, to the floor without further delay.

This is all a non sequitur. The implicated company promptly recalled its product in accordance with FDA requests; giving the FDA authority to recall would not have affected the case. The proposed legislation would require that the FDA inspect “high risk” food processing facilities just once a year and others once every four years. But the facility involved in this case already was regularly inspected by many government inspectors and private auditing groups. There is no indication that more frequent inspection by the FDA reduces the incidence of foodborne illness.

With its present authority, the FDA can already recommend anything it wishes. The great “spinach crisis of 2006” was, in fact, a simple FDA recommendation that consumers not eat, and vendors not sell, fresh spinach. The fact that the FDA had no mandatory recall authority did not matter: no reputable supermarket or restaurant chain would sell or use a product the FDA recommends against using.

In fact, if the FDA knew how to “prevent contamination” of fresh produce without compromising other values, such as affordability, it could simply suggest these procedures and recommend against the consumption or sale of produce not grown or processed in this fashion. It doesn’t do so, not because it lacks mandatory authority but because it hasn’t the foggiest idea of how to “prevent contamination” of fresh produce.

Indeed, the claim made by CSPI that food safety practices have “clearly failed” only makes sense if you believe that the proper goal for a food safety system applied to a product grown under the open skies, subject to wind, rain, animals, and other variables of Mother Nature, is that nothing should ever go wrong — an expectation for safety we don’t apply to autos, airlines, or any other facet of our lives.

The reality is that we know very little about food safety. Nobody knows the migration rate of E. coli O157 or how far a filth fly can carry a pathogen. In the absence of definitive answers, food safety on the farm is a continuum, not an absolute.

Common sense would indicate that if a five-foot buffer around a farm is good, a ten-foot buffer is better and a fifty-foot buffer better still. If putting a trap every hundred yards to catch rodents in the field is good, then trapping every fifty yards is better, and every twenty-five yards better still. If land floods, possibly bringing unknown pathogens to the soil, postponing planting for three months is prudent, six months more prudent, five years, super-prudent.

There is no place on the continuum of actions at which we can declare food to be definitively and absolutely “safe.” All of the food safety actions available to us are just steps toward reducing risk. Each of those steps has the effect of increasing the cost of the product to the consumer — and may also involve costs to other values, such as environmental preservation.

We are capable of building cars that could withstand 100-mile-per-hour collisions. But the law does not require this, because we recognize that such expensive, heavy, fuel-guzzling vehicles would contravene other values, such as affordable transportation and reducing our dependence on petroleum. Similarly, though we may value food safety, there are also other things we value. We don’t grow each leaf of romaine in a controlled indoor environment akin to a semiconductor manufacturing facility “clean room.” We don’t require agricultural workers to decontaminate and don hazmat suits to avoid passing pathogens on to the produce. These actions would increase the price of produce dramatically, thus depriving many of the opportunity to eat healthier diets. And even if these precautions were taken, there remains the possibility that cooks and servers — both at restaurants and at home — might contaminate the produce.

The FDA already possesses enormous power: It can and has stopped commerce in whole industries and blocked the entry of produce from companies and countries. With its vast influence on consumers and trade buyers, it can bankrupt almost any produce farmer, rancher, packer, or processor. Few will take the risk of crossing the FDA.

A Practical Plan for Reform

To be sure, government has an important role in food safety — properly understood in three categories. First, it must examine the legal system and understand that how it ascribes liability shapes the behavior of people and businesses. Second, government should work to change the incentive structure inherent in today’s liability system so as to encourage the desired safety activities. Third, the role of effective government in this arena needs to be reconceived not as simply bigger government but as government that does well what it attempts to do — more effectively discharging its traditional responsibilities of establishing a legal structure for commerce and effectively policing and contributing to the dissemination of knowledge.

How would this work in practice? Here is a six-point plan to revise and improve the federal government’s approach to food safety.

You can read our six-point plan for reform and the rest of the piece at The New Atlantis website. The piece is titled, How to Improve Food Safety: Aggrandizing the FDA Only Distracts from Real Solutions.

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