New $1.4 Billion Food Safety Legislation Gives Gov’t Power to Order Recalls, Increase Inspections

By Fred Lucas | January 5, 2011 | 4:19 AM EST

Fruit waiting to be sold at a farmers' market in Baltimore. (AP Photo/Steve Ruark)

( – The Food and Drug Administration (FDA) will have the authority to order recalls of food products, increase inspections, and boost paperwork for food packaging companies under a bill President Barack Obama quietly signed into law on Tuesday.
Each year, foodborne illnesses strike 48 million Americans, according to the FDA. The Food Safety Modernization Act was passed by Congress late last year, with bipartisan support, after 2010 saw an outbreak of E. coli and salmonella in peanuts, eggs and other products. The new legislation marks the biggest food safety overhaul since 1938.
Most of the price tag for the bill, $1.4 billion over five years, comes from increasing the number of food-manufacturer inspections. Currently, major food-manufacturing facilities are inspected about once per decade. Under the new legislation, inspections would accelerate to once every five years and once every three years for “high-risk” foods.
However, boosting inspections from once a decade to twice a decade is not likely to make food safer, said Gregory Conko, a senior fellow at the Competitive Enterprise Institute.
“It’s not going to make any difference at all, other than to spend a lot of money,” Conko told
Food safety and accountability of food producers is important, Conko said. But, as opposed to federal rules involving massive record keeping, he said the government should set penalties but allow the companies to determine how to meet those standards.
“You need to allow maximum flexibility at the producer level,” Conko said. “The goal should be to establish an expectation of quality and a penalty for failure to meet that expectation.”
The FDA has long focused on prevention, as has much of the food industry, said FDA Commissioner Margaret A. Hamburg.
“What’s new is the recognition that, for all the strengths of the American food system, a breakdown at any point on the farm-to-table spectrum can cause catastrophic harm to the health of consumers and great disruption and economic loss to the food industry,” Hamburg said in a written statement.
“So, we need to look at the food system as a whole,” she said, “be clear about the food safety responsibility of all of its participants, and strengthen accountability for prevention throughout the entire food system, domestically and internationally. The new law meets these needs in numerous ways.
“For example, processors of all types of food will now be required to evaluate the hazards in their operations, implement and monitor effective measures to prevent contamination, and have a plan in place to take any corrective actions that are necessary,” Hamburg said. “Also, FDA will have much more effective enforcement tools for ensuring those plans are adequate and properly implemented, including mandatory recall authority when needed to swiftly remove contaminated food from the market.
Currently, the FDA negotiates with a food company about a recall when the issue arises. The new legislation would allow the FDA to order a recall.
Conko does not think the FDA will turn the food industry upside down with this authority. But he does see risks, by acting on public pressure and recalling a product that should not be recalled and thus hurting consumers.
“It could mean that if a congressional panel or the New York Times demands action, the FDA will use that authority,” Conko said. “Now, the FDA has to negotiate a recall. When the FDA asks for a recall, the producers always do. But it’s an incentive for the FDA to try to get it right.”
The new legislation would also require the FDA to develop safety regulations for producers of the highest risk produce. Conko said this portion of the law could have a positive impact by identifying the most risky foods. But, he added that large producers already have a system in place to assess risk.
The bill further requires farms and food processing facilities to keep records to help the government trace food items that have been or should be recalled. But farms and processing plants with net revenues of less than $500,000 per year will be exempt from extra paperwork, thanks to a Senate amendment.
That aspect of the legislation, however, will be a major burden on small and medium companies, Conko said.
“The intent was to exclude small producers, but $500,000 net revenue is not a particularly high threshold,” Conko said. “A lot will be caught in the trap.”