Food safety legislation won’t mend regulatory divide


As lawmakers prepare for hearings into the largest egg recall in U.S. history, food safety advocates say the congressional probe could give momentum to a long-delayed measure that would enhance the power of the Food and Drug Administration.

If passed, say policymakers, the FDA Food Safety Modernization Act could be the first major step toward streamlining the often unwieldy food safety system.

For example, in the U.S. cheese pizza is regulated by one federal agency, but a pepperoni pizza is overseen by another. An open-faced turkey sandwich, likewise, falls under the purview of the U.S. Department of Agriculture, but one with two slices of bread is under the jurisdiction of the FDA. Liquid beef broth and dehydrated chicken broth? USDA. Liquid chicken broth and dehydrated beef broth? FDA.

These are just a few examples of the confusing divide in the nation’s food safety system that contributed to the massive egg recall. Lawmakers will grapple with the circumstances surrounding the recall next week in the congressional probe of the outbreak of Salmonella enteritidis that has sickened more than 1,500 people.

But while most policymakers and food safety experts agree the regulatory system is broken, they also agree that chances of a significant overhaul any time soon are dwindling.

The upcoming hearing, which is expected to attract significant media attention, could speed passage of the Senate bill, which has languished for months. Or the bill could be sidelined by a legislative calendar already compressed by the pending midterm elections.

In either case, the bill doesn’t solve the awkward division of responsibility between the USDA and the FDA.

The House Energy and Commerce Subcommittee on Health has invited the owners of the two Iowa mega-farms implicated in the recall of 550 million eggs to testify at the proceeding. It also has requested records from both the USDA and FDA in an effort to untangle what is a classic illustration of food safety regulation at its most confusing.

The USDA regulates the quality of eggs still in their shells; it also inspects liquid, dried and frozen egg products. The FDA is responsible for the safety of eggs still in their shells, but until recently it could intervene only after problems became evident. So neither agency was proactive about examining the production facilities operated by Wright County Egg and Hillandale Farms of Iowa, where federal inspectors recently found giant manure piles, rodents and maggots.

On Tuesday, congressional investigators released records showing Wright County Egg received a positive test result for Salmonella enteritidis more than a week before the FDA pressed the company to launch a recall. The records also indicated that from 2008 to 2010, testing at the Iowa farm found 426 positive tests for some strains of salmonella, including 73 samples potentially positive for Salmonella enteritidis.

The Justice Department and FDA have launched a criminal investigation into the distribution of the contaminated eggs.

In what FDA Commissioner Margaret Hamburg recently termed an “unfortunate irony,” new FDA rules governing egg safety went into effect July 9, too late to prevent the current salmonella outbreak. The rules set standards for facility cleanliness, testing for salmonella and record-keeping. But it doesn’t bridge the gap over the split oversight of eggs.

Though the Senate bill also remains mum on reconciling such divides, it represents a badly needed leap forward in regulation, said Carol Tucker Foreman, a distinguished fellow at the Consumer Federation of America and former Agriculture Department food safety official.

The most important thing is to modernize the underlying statutes and clarify authority, Foreman said.

“If you brought [food regulators from the FDA and the USDA] together now, you’d just have a terrible mess,” Foreman said.

It’s a jumble that has been compounded by decades of ad hoc fixes as new food concerns arose. Divided oversight dates to the days of “The Jungle,” Upton Sinclair’s 1906 fictionalized account of the dismal, unsanitary conditions in Chicago slaughterhouses, which caused a massive public outcry and led to federal investigations of the meatpacking industry.

The book, which was serialized in 1905, increased pressure on Washington to deal with food safety, and in response Congress passed two laws.

The Pure Food and Drug Act was designed to fix problems with adulterated food and drug products, such as so-called elixirs peddled as miracle cures. Responsibility for enforcing the law was assigned to the USDA’s Bureau of Chemistry, which later was spun off and became the FDA.

The Meat Inspection Act also gave enforcement duties to the USDA because the agency had staff veterinarians capable of dealing with sick animals and other livestock problems.

Since then, food production has become globalized and vastly more complex, and the FDA’s powers and funding, in particular, have not kept up.

The food safety bill now in the Senate aims to transform the FDA from an agency that reacts to food-borne illness outbreaks to one that heads them off by setting new quality standards, increasing inspections and requiring better record-keeping by food producers. It also would give the FDA the power to order food recalls on its own instead of relying on cooperation from industry.

The bill enjoys widespread support from food safety groups, consumer advocates and food producers, some of them stung by the expense of major recalls resulting from federal regulators’ inability to prevent outbreaks.

But the measure is far from a perfect fix. The proposed Senate legislation doesn’t say how such expanded authority will be funded. It excludes producers who sell only at their farms or in local farmers markets. There are also concerns that countries with weaker food safety standards could force the U.S. to accept their food exports under international agreements.

The House passed a version of the legislation in July 2009 that does include funding. The Senate Health, Education, Labor and Pensions Committee approved its version in November.

“Hopefully, we can get this bill passed and to the White House before year’s end,” committee chairman Tom Harkin (D-Iowa) said last fall, shortly before his panel approved the measure. Ten months later Harkin still is stuck in wish mode. Jim Manley, spokesman for Senate Majority Leader Harry Reid (D-Nev.), was noncommittal about when the bill might be placed on the Senate calendar. It’s not yet scheduled for a floor vote.

One sticking point has been a proposal by Sen. Dianne Feinstein (D-Calif.) to attempt to graft an amendment onto the bill that would ban use of the controversial plastics additive bisphenol A, or BPA, in food and beverage containers.

A number of studies have linked BPA to a range of health problems including reproductive abnormalities and increased risks of cancer and diabetes. Some U.S. states and cities have banned its use in certain products, and many companies have voluntarily removed BPA from their products.

Major food industry groups promptly promised to withdraw support for the bill if it included restrictions on BPA use in food packaging. BPA makes plastic more durable and is an ingredient in epoxy resin used in can linings. Making that change in food packaging would be extremely expensive, producers warn.

In recent weeks, Feinstein has narrowed the scope of her efforts, saying she will offer an amendment that will outlaw the use of BPA in baby drinking cups, baby bottles and containers used for baby food and infant formula.

Meanwhile, Sen. Tom Coburn (R-Okla.) this week threatened to hold up the bill if Democrats try to move it. Coburn thinks the bill costs too much and is unconvinced that expanding the regulatory authority of the FDA would improve food safety.

But the measure is not the only piece of food safety legislation caught in a political morass. In late July, Sen. Patrick J. Leahy (D-Vt.) introduced legislation to upgrade the crime of knowingly distributing contaminated food to a felony from a misdemeanor and making violations punishable by prison terms of up to 10 years. But that bill has not moved out of the Senate Health, Education, Labor and Pensions Committee.

Eager to have the subject addressed while the broader food safety measure is pending, Leahy crafted a second bill on the same subject, but with language aimed at ensuring that it would be sent to the Judiciary Committee, where as chairman he has a large say in how quickly bills move.

Leahy introduced his most recent bill Monday.