Academic journal article Duke Environmental Law & Policy Forum

The U.S. Food Safety Modernization Act: Implications in Transnational Governance of Food Safety, Food System Sustainability, and the Tension with Free Trade

Academic journal article Duke Environmental Law & Policy Forum

The U.S. Food Safety Modernization Act: Implications in Transnational Governance of Food Safety, Food System Sustainability, and the Tension with Free Trade

Article excerpt

TABLE OF CONTENTS  I. Introduction and Background  A. Twenty-first Century Market, Nineteenth Century Regulation  1. The Problem of Scale  2. The Qualitative Problems  3. The Need for New Tools and Strategies  B. The Food Safety Modernization Act II. Key Regulatory Authorities in the Food Safety Modernization  Act that Apply to Imported Foods  A. New Science-Based, Preventive Controls  1. Hazard Analysis Risk-Based Preventive Controls  2. Produce Safety Standards  B. Implementing the Regulatory Controls on Imported Foods  1. Definition of "Importer"  2. Foreign Supplier Verification Programs  C. Mandatory Certification Authority  D. Accreditation of Third-Party Auditors  1. Voluntary Qualified Importer Program  E. Increased FDA Foreign Presence III. Consideration of Free Trade Agreements  A. Sanitary and Phytosanitary Measures  B. Technical Barriers to Trade  C. Heightened International Cooperation IV. Conclusion 

I. INTRODUCTION AND BACKGROUND

We are all European. We are all Asian. We are all American.

Our food systems are global. What we choose to eat in America affects the rest of the world. What the rest of the world chooses to eat affects us in America.

We could lament the ills of globalizing our food supply, but, like Pandora's Box, global trade has been opened and closing it now is not a realistic option. Food supply globalization has not even been slowed by international food safety scandals, a worldwide economic downturn, or local food movements. (1) Food manufacturers and marketers continue to feel intense pressure to lower costs, fueling a quest for efficiency and leading to increased sourcing abroad. The result is a cycle of increasing complexity in the global supply chain. (2) In short, the days of food manufacturers and marketers sourcing all their ingredients and products from their own backyard are over. (3)

The benefits of global trade are well known. They include lower prices and a wider variety of products. However, increased international trade in food also brings increased risk, including food safety dangers and food system fragility.

History demonstrates that an increasing number of links in the supply chain increases the opportunity for adulteration. The ancient Hellenic and Roman expansions were accompanied by records of problems with food adulteration. In Ancient Greece, Theophrastus (4) reported that people used food adulterants to earn higher profits. (5) In Ancient Rome, Pliny the Elder (6) provided evidence of widespread fraudulent adulteration, such as bread adulterated with chalk to make it whiter and pepper adulterated with juniper berries, (7) while Galen (8) wrote about the adulteration of spices.

Similarly, colonial expansion in the Americas during the sixteenth and seventeenth centuries coincided with increased demand for trade in agricultural goods from the New World. (9) The demand and value of imported goods rose along with the incentive and opportunity to adulterate. Correspondingly, adulteration surged. (10) According to one report from around 1880, 41 percent of the samples of ground coffee in New York were adulterated and 71 percent of the samples of olive oil in New York and Massachusetts were diluted with cottonseed oil. (11) Merchants pushed for new food laws because they recognized that adulterated goods hurt marketability for the whole trade. (12)

In response, Congress passed food related legislation. The first federal food law is thought to be the Tea Adulteration Act enacted in 1883.13 In 1890 Congress passed an act providing for inspection of meat exports. (14) A live-cattle inspection law followed in 1891. (15) In 1899 Congress authorized the Secretary of Agriculture to inspect and analyze any imported food, drug, or liquor when there was reason to believe there was a danger. (16) To deal with the growing complexity of the national and international food supply, more comprehensive legislative solutions were enacted with the Pure Food and Drug Act in 1906 and the Food, Drug, and Cosmetic Act in 1938. …

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