In its rush to enact sweeping new food safety legislation during the lame-duck session, Congress hit a procedural roadblock that may put the bill off for at least another year. User fees added to the Senate version run afoul of a constitutional requirement that tax measures originate in the House. That's good news for consumers because this expansion of Food and Drug Administration regulatory authority would waste billions of taxpayer dollars without making our food supply any safer.
With as many as 5,000 Americans dying every year from food-borne illnesses, consumers would obviously benefit from a safer food supply. Unfortunately, the FDA Food Safety Modernization Act won't help us reach that goal.
Among other things, the legislation would increase the frequency of inspections, extend special risk reduction rules to farms and other food producers, and give the FDA authority to mandate product recalls.
More frequent inspections may seem superficially appealing because current law only requires facilities to be inspected at least once every 10 years. But the new law would merely require inspections for most facilities every five years, and once every three years for identified "high-risk" facilities.
Doubling the rate of inspections of the tens of thousands of food production facilities in the U.S. would account for most of the bill's $1.4 billion four-year cost. But does anyone really believe that a single inspection every three to five years would do much to catch unsafe producers?
Even if they occurred more often, the usefulness of inspections is limited by a practical inability to detect microbial pathogens.
Inspectors work by looking around to see whether a facility is clean and examining the producer's records of its own risk reduction efforts. But records are only as good as the record keeper, and a producer trustworthy enough to keep perfect records doesn't need frequent inspections.
More important, a facility that looks clean can still harbor pathogens, while one cluttered with debris can be sterile. There is simply no feasible way for a visual inspection to tell the difference, and random testing misses way too much. That's the main reason why meat and poultry account for about half of all the food-borne illness outbreaks even though slaughterhouses may not legally operate without USDA inspectors on the premises at all times.
As a consequence, the real meat of the food safety legislation is its expansion of risk reduction rules called Hazard Analysis and Critical Control Points (HACCP), which already apply to meat, poultry and seafood producers.
HACCP programs were first developed within the food industry and only imposed by regulation years later. They require companies to examine their production streams, identify points where pathogens or other hazards may enter the system, and take steps to make those processes safer.
As originally envisioned, the concept is highly flexible and lets producers tailor risk-reduction efforts to their individual circumstances. And, at the margin, HACCP probably has resulted in modest safety improvements for meat, poultry and seafood. So, in theory, expanding HACCP to more facilities seems to make sense.
As implemented by regulators, however, HACCP tends to smother firms in paperwork and impose rigid, costly and out-of-date practices that simply have not kept up with changes in the food industry. That rigidity also discourages firms from developing innovative new processes and practices that could deliver real food safety improvements.
Complying with HACCP rules is also hugely expensive, which may be one reason why the country's biggest food producers support the legislation. Big companies already have their own voluntary HACCP programs. But the new law would force those costs on smaller competitors and shift substantial quality control responsibilities onto the small farms and other producers that feed their supply chains.
A last-minute amendment to the bill would exempt the smallest producers, but would leave tens of thousands of small and mid-sized farms and food stands to be crushed under the weight of rules designed for some of the world's largest food processors.
Finally, granting FDA the power to order product recalls is a solution in search of a problem. Supporters would be hard pressed to identify a single case in which producers refused to honor a recall request based on evidence that a product was actually or likely to be tainted.
But with public and media pressure for authorities to "do something" any time there is a food-borne illness outbreak, an FDA with unlimited power could be expected to order recalls on countless products that are perfectly safe, with predictable impacts on prices and consumer choice.
Recall what happened in June 2008, when the FDA encouraged a voluntary recall of tomatoes seemingly linked to that year's major salmonella outbreak. Countless supermarkets, restaurants and consumers threw out crates of tomatoes in a scare that cost the industry an estimated $100 million in losses before the FDA realized the problem was actually tainted jalapeño peppers.
In the end, increasing the FDA's regulatory authority in this way would waste taxpayer money on activities unlikely to improve safety, while driving many small and medium-sized producers out of the market and raising the cost of the food we eat.