Academic journal article Stanford Law & Policy Review

An Examination of Whether U.S. Country of Origin Labeling Legislation Plays a Role in Protecting Consumers from Contaminated Food

Academic journal article Stanford Law & Policy Review

An Examination of Whether U.S. Country of Origin Labeling Legislation Plays a Role in Protecting Consumers from Contaminated Food

Article excerpt

INTRODUCTION

Growing numbers of consumers have concerns about the safety of the U.S. food supply. (1) A series of nationwide food recalls has heightened consumers' awareness of the complexity and increasingly global scale of food supply chains and weakened their confidence in government and industry food safety oversight. These public health scares have not been isolated to a particular geographic region or food item, but rather have spanned the food sector. The contaminated food items range from E. coli-tainted Californian spinach, to salmonella-spoiled U.S. peanuts and Mexican jalapeno peppers, to various melamine-adulterated Chinese food products. As consumers search for ways to guard against contaminated food, interest in knowing the source of their food at point of purchase has grown. (2) Media coverage of food recalls has further fueled this interest by suggesting that retail-level food origin labeling will help make the U.S. food supply safer for consumers. (3)

This growing consumer interest in food safety has played a prominent role in the recent federal implementation of a measure that extends pre-existing origin labeling requirements to previously exempt food and agricultural products. The legislation and corresponding regulation, primarily referred to by its acronym, COOL (country-of-origin labeling), do not have food safety and public health as objectives, but instead aim to fulfill a marketing objective. The stated purpose of the regulation is to provide point of purchase country-of-origin information to consumers in order to aid their buying decisions. (4) Despite the insistence of the U.S. government that COOL is not a food safety measure, (5) many consumers remain concerned about food safety and quality standards outside the United States and consequently would like to use information about the origins of their food to inform their purchasing decisions.

In light of this background, it is important to examine whether consumers can effectively use COOL information to reduce their risk of consuming contaminated food. It is also important to consider a separate, but closely related question of whether government and industry can use the verification system underpinning the country-of-origin labeling requirements to facilitate the trace-back of a contaminated food item to its source.

This Article addresses these two questions by first providing an overview of the statutory and regulatory authority governing origin requirements for food products in the United States. Parts I and II examine the primary legislation in place prior to the implementation of the U.S. COOL legislation, and Part III outlines the details of the COOL regulatory regime. An in-depth understanding of the coverage and the specific requirements of these regulatory measures is crucial to examining their potential role, or lack thereof, in food safety risk mitigation. Part IV then considers the extent to which COOL could be used to help safeguard consumers from contaminated and adulterated food. This discussion draws on the preceding overview to illustrate some of the limitations of the current regulatory framework in serving this broader purpose. The Article concludes with thoughts on potential linkages between existing country-of-origin labeling traceability requirements and food safety traceability legislation potentially on the horizon.

I. U.S. COUNTRY-OF-ORIGIN REQUIREMENTS PRIOR TO COOL

Prior to the implementation of the U.S. COOL legislation, various statutes and regulations governed the provision of food origin information. (6) This Part will focus on the primary legislation regulating country-of-origin requirements for agriculture products in the pre-COOL period: the Smoot-Hawley Tariff Act of 1930 (Tariff Act). (7) Under this Act, the Bureau of Customs and Border Protection (CBP) is the agency responsible for administering country-of-origin marking requirements for all imported items. …

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