Reforming the Food Safety System: What If Consolidation Isn't Enough?

Harvard Law Review, March 2007 | Go to article overview

Reforming the Food Safety System: What If Consolidation Isn't Enough?


I. INTRODUCTION

In the fall of 2006, animal waste contaminated crop fields and infected ready-to-eat spinach with E. coli bacteria, resulting in three deaths and more than 200 illnesses. (1) Not long afterward, a salmonella outbreak in lettuce and tomatoes sickened 171 people in nearly twenty states. (2) That a virtuous food could bring about disease seems paradoxical: "Here you think you're feeding your child a great, healthy meal," said Dennis Krause, father of a young boy infected with E. coli. "But here I was, poisoning him." (3) According to Carol Tucker Foreman, director of the Food Policy Institute at the Consumer Federation of America, "[f]armers can do pretty much as they please ... as long as they don't make anyone sick." (4)

Though the contamination of fresh vegetables was a surprise to many, it was only one of the latest of several problems facing the United States's food supply. Another E. coli contamination hit fast food restaurants in New York and New Jersey in late 2006, (5) and a Consumer Reports study found that eighty-three percent of fresh chickens tested were infected with campylobacter or salmonella bacteria. (6) Indeed, the General Accounting Office (GAO) estimates that foodborne diseases account for up to 33 million bouts of illness and up to 9000 deaths every year. (7)

In examining these dangers, government officials and commentators have singled out the current "balkanized structure" of the national food safety system--composed of fifteen federal agencies that work under thirty foundational statutes--as a main cause. (8) Many of these officials and commentators have recommended consolidation of federal agencies into a single food safety agency; they recommended it almost as soon as the Food and Drug Administration (FDA) and United States Department of Agriculture (USDA) were separated and have regularly recommended it ever since. (9) A recent New York Times editorial stated that "the idea of merging [food inspection agencies] into a single food safety administration" is a good one and "has gained some momentum thanks to the recent E. coli outbreak caused by contaminated spinach." (10) Others have used more severe words: "The food safety process is collapsing," asserted Representative Rosa DeLauro, who has repeatedly called for a unification of the FDA and the USDA. (11) Another commentator opined:

  The public is never in more need of assurance than when a food safety
  crisis arises. It is precisely at those times that the current
  regulatory structure prevents effective action. Because it is rare
  that a single agency has complete jurisdiction over the entire scope
  of a major food safety problem.... [often] the public is faced with
  a lengthy delay while overlapping bureaucracies creak into some
  attempt at a coordinated response. (12)

Critics of the current system point to wasted resources, enforcement duties that slip through the jurisdictional cracks, and a lack of agency accountability as just a few of its faults.

In light of ever-increasing threats to our food supply, (13) news reports of contamination, and the recent consolidation of food safety agencies in several other countries, (14) the calls for agency unification have become more urgent. But the multiplicity of agencies is too often treated as the whole problem, and consolidation of agencies as the entire cure; the larger problems stem from food safety agencies' inadequate funding and insufficient powers. This Note discusses several of these oft-noted food safety problems, suggesting solutions that lie not in agency consolidation, but in increased statutory power and greater funding commitments. It argues that although the food safety system evinces both agency overlap and disjointedness that at times seem striking, most dangers to the food supply are resolvable not through mere consolidation, but rather through increased funding or additional authority. Moreover, the unification of the fifteen federal agencies presently responsible for the U. …

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