Chapter 1: Understanding The Role Of Governmental Oversight
- Return to Defending Claims.
Defending a food-borne illness claim requires a thorough understanding of how our food is regulated. Because many governmental agencies (both state federal) play a role in the regulation of virtually all of the foods we eat, it is critical in every case to understand: (1) the role of each regulatory agency in the production of the food at issue; and (2) the specific laws, regulations and rules that apply to the particular product. Although the history of federal oversight over our food supply is quite long and storied, the following discussion summarizes generally the progression and current status of the federal regulation governing the food we eat.
At the dawn of the last Century, our nation, through advances in science and technology, began to gradually understand the processes through which we could make food more accessible. Due to the emergence of rapid transnational shipping, improved preservation techniques and the ability of media to reach an increasing number of consumers, the food industry revolutionized. For the first time, food processors could viably ship perishable products anywhere in the nation.
As interstate shipment of food began to increase, however, food safety regulations were inadequate. In the absence of a federal approach (there had not yet been a need) America’s food laws were implemented primarily at the state and local level. As can be expected within a growing nation, industrial advances were quickly outpacing limited state and local regulations. In the meat industry, in particular, laws defining what constituted “adulteration” or “misbranding” were determined, if at all, by each individual state. Moreover, what was forbidden in one state was entirely lawful in another. This hodgepodge of inconsistent regulation soon inspired concerned citizens, consumer groups and social reformers to voice their concerns. Without a national approach to food safety (and a single set of rules), American citizens in the various States had no confidence in the origins or safety of the food they were eating.
During this period, technological advances outside of the food industry were also instrumental to inspiring incredible change. The emergence of inexpensive newspapers that reached across the nation gave individuals and consumer groups greater opportunity to voice their concerns. Social reformers, who otherwise would have remained unheard, could now reach a broad audience. The most famous example, of course, was Upton Sinclair. In his 1906 novel, The Jungle, Sinclair described the unsanitary conditions prevalent in large slaughter plants. The book described unwholesome carcasses being processed for use in food, processing taking place in unhealthy conditions, and meat and other food products coming into contact with contaminants present in the plants. Such conditions outraged the public, and the growing demand for change soon became too loud for Congress to ignore. Inspired by this national chorus, the federal government realized that a uniform food safety policy (i.e., a single set of rules) was essential to protect both the national economy and the health of American citizens.
The federal approach to food safety was, for all practical purposes, solidified in 1906, when the United States Congress passed the Wholesome Meat Act and the Pure Food and Drugs Act. These Acts (along with their successors) formed the framework for the national food safety policy that continues to exist to this day.
The 1906 Wholesome Meat Act (now known as the Federal Meat Inspection Act, 21 U.S.C. § 601, et seq.) was originally enacted in response to The Jungle. With the sweep of a pen, the federal legislation required continuous federal inspection within meat packing plants to ensure that all meat products sold in interstate commerce would be: (1) produced under sanitary conditions; (2) not adulterated; and (3) properly labeled. Today, the Federal Meat Inspection Act (“FMIA”) is enforced by the Food Safety Inspection Service (“FSIS”), an agency falling within the jurisdiction of the United States Department of Agriculture (“USDA”). In meat packing plants, the FMIA continues to require continuous, on-site inspection of the entire slaughter and processing process. In addition to its inspection responsibilities, the USDA also closely regulates product labeling. Over the decades, USDA’s authority has expanded to oversee poultry production under the Poultry Products Inspection Act (21 U.S.C. § 451, et seq.) and egg production under the Egg Products Inspection Act (21 U.S.C. § 1031, et seq).
Like the FMIA, the original Pure Food and Drug Act was also enacted in response to social pressure. While the Wholesome Meat Act was designed to oversee the production of meat, the Pure Food and Drug Act was created to increase confidence in many other foods. Here too, Congress was inspired to action following a number of well-publicized scandals involving the food industry, including one where American soldiers serving in the Spanish-American war were allegedly sickened by embalmed foods. Additionally, with advances in chemistry, it was becoming more common for business to use various additives to preserve foods. These activities, of course, also triggered additional debates involving the merits of substitute foods, such as margarine for butter, and the use of questionable “ingredients” such as coal tar, borax, and various food colors. In response, the 1906 Pure Food and Drugs Act, as originally enacted, forbade adulteration and misbranding of foods in interstate commerce. This Act was amended several times before being replaced in 1938 by the more stringent Federal Food, Drug and Cosmetic Act (“FDCA”). 21 U.S.C. § 301 et seq. Today, the FDCA is enforced by the Federal Food and Drug Administration (“FDA”), an agency falling under the jurisdiction of the Department of Health and Human Services (“DHHS”). Currently, the FDA has jurisdiction over approximately 78 percent of the domestic and imported foods sold in interstate commerce, and seeks to ensure that such products are safe, nutritious, wholesome, and adequately labeled. Although the FDA, unlike FSIS, does not provide continuous inspection in food processing facilities, it has jurisdiction (and conducts periodic inspections) where food is processed, packaged, stored and sold.
Although the USDA and the FDA share most of the regulatory responsibility for food safety in America, the following additional federal agencies are also responsible for food safety as part of their federal mandate:
The Centers for Disease Control and Prevention (“CDC”), within the DHHS, gathers data on food-borne illnesses, investigates food-borne illness outbreaks, and monitors the effectiveness of numerous prevention and control initiatives. As part of these efforts, CDC also helps state and local epidemiologists (and state health laboratories) identify and prevent food-borne illness and other outbreaks. The CDC engages in these activities under the general authority of the Public Health Service Act. 42 U.S.C. § 201, et seq.
The Environmental Protection Agency (“EPA”) protects the nation’s water supply by setting standards for drinking water under the Safe Drinking Water Act. 42 U.S.C. § 300g, et seq. The EPA also regulates pesticide products and establishes tolerances for residues on various food commodities and animal feed. The EPA operates under the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”), 7 U.S.C. § 136, et seq., and the FDCA.
The Animal and Plant Health Inspection Service (“APHIS”) is another agency which falls within the USDA umbrella. The APHIS is responsible for administering various federal laws and regulations to enhance the health and care of animals and plants. The APHIS assists with food safety on a national level by coordinating needed research and other efforts to protect the industry against pathogens or diseases that are a risk to humans.
The Grain Inspection, Packers and Stockyards Administration (“GIPSA”) is another agency, within the USDA, which helps establish quality standards for food products. The GIPSA also coordinates a national inspection system for grain and related products (and reports its findings to the FDA) to ensure compliance with the FDCA, the United States Grain Standards Act, 7 U.S.C. § 71, et seq., and the Agricultural Marketing Act (“AMA”) 12 U.S.C. § 1141, et seq.
The Agricultural Marketing Service (“AMS”), another agency within the USDA, is responsible for establishing quality and grading standards for various dairy, egg, fruit, meat, poultry, seafood and vegetable products. As part of the grading process, the AMS considers various safety factors, such as the cleanliness of the product. The AMS operates programs under a number of federal laws relating to food safety, including the AMA and the EPIA.
National Marine Fisheries Service (“NMFS”), an agency within the United States Department of Commerce, administers voluntary seafood quality inspection programs. In addition to the inspection and certification of fish products for human consumption, the NMFS also provides inspection of animal feeds and pet foods derived from fish products. The NMFS operates under the AMA and the Federal Fish and Wildlife Act. 16 U.S.C. §742, et seq.
The Federal Trade Commission (“FTC”) enforces the Federal Trade Commission Act, 15 U.S.C. § 41, et seq., which prohibits unfair or deceptive practices. The FTC’s food safety objective is to prevent the dissemination of false advertising which has the purpose of inducing the purchase of food.
Improving food safety is and always will be a scientific endeavor. As such, it will be important for our government to remain flexible as new technologies emerge and discoveries are made. The federal government understands this, and is constantly working to improve and enhance existing capabilities. The federal government expends vast resources in the fields of applied research and risk assessment as it relates to food safety. Research is conducted in a wide variety of disciplines, by a number of different entities. These include efforts by, among others, the National Institutes of Health, the National Institute for Food Safety Technology (MOFFET Center), the National Advisory Committee on Microbiological Criteria for Foods (“NACMCF”) and the USDA’s Agricultural Research Services.
In addition to extensive research, the federal approach to food safety has in recent years also focused on consumer and industry education. The federal government has developed food safety educational programs that span the entire farm-to-table continuum. This includes educating farmers, producers, distributors, food-handlers and consumers. An excellent example is the “FightBAC!” campaign, sponsored by the Partnership for Food Safety Education, which was created to help educate consumers about the potential food-borne illness hazards associated with improperly handling and cooking raw meat and poultry products.
Together, these agencies (and initiatives) promote food safety and attempt to reduce food-borne illness through inspections, surveillance, enforcement, research, risk assessment, pre-market approval, controls for safe processing, and education. The federal approach to food safety has evolved into a vast, multi-pronged food safety system managed by thousands of caring and dedicated Americans.
Copyright 2009 by Shawn K. Stevens
