Web Exclusive | January 2011 | By Jordan Melnick

FDA Overhaul Finally Passes

The lame duck session did have its victories, and the new food safety act is the biggest.
The FDA has been given more power by the government to oversee food supply.
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After a long and tortuous legislative journey, the FDA Modernization Act, a fundamental recalibration of the nation’s food safety system, has finally passed Congress and was signed by President Obama on January 4.

In amending the Federal Food, Drug and Cosmetic Act of 1938, the Modernization Act increases the FDA’s ability to monitor the nation’s food supply and to take stronger action when safety issues arise. Specifically, the act authorizes the FDA to order immediate recalls of tainted fruit and vegetable products and sets new safety standards for food manufacturers and processors.

The Modernization Act has had bipartisan support and endorsement across the food-service industry, but other legislative priorities, including health care and financial reform, kept bumping it from Congress’ agenda. Despite the year-and-a-half wait, President Obama signed it into law, making it the latest in an unexpected string of legislative achievements following big Republican gains in the November midterm elections.

The National Restaurant Association (NRA), which advised Congress on the bill, hails the Modernization Act as a necessary update of the nation’s food safety system and a big win for restaurants.

“This is a really important update to our food safety laws, and it accomplishes, from a restaurant perspective, a lot of the priorities that we had set out,” says Dan Roehl, public affairs specialist at the NRA.  

Roehl emphasizes the power the Modernization Act gives regulators to inspect food facilities high up the supply chain and to order a recall of tainted food. Today, the FDA can only recommend—not mandate—a recall.

“I think those are all really important keys that will help focus our food safety system further on prevention and ensure we have a tool to make sure our food supply is even safer than it is today,” Roehl says.

Sarah Klein, an attorney at the Center for Science in the Public Interest (CSPI), says modernizing the FDA has been a long time coming. The CSPI’s food safety program first drafted a bill in 1996, which was “introduced time and time again,” but to no avail.  

“The reason the bill finally gained momentum is that it is a bipartisan issue—whatever party you are a member of, food safety affects you—and we also saw that the food industry finally came to the table,” Klein says. “After several years of high-profile outbreaks [of food-borne illness] and recalls, it finally became clear to the industry that they needed the help that this bill will provide, and that it was time for some real change on the books about food safety.

“While this bill requires more of the industry, it also require more oversight from the government,” Klein says. “And that’s something the industry wanted as well.”

This is good news for restaurants, which often bear the brunt of the blame for food-borne-illness outbreaks even when contamination occurs higher up the supply chain.

“In general, we have been the ones blamed for food-borne illness when in fact the cases rarely have anything to do with the restaurants,” says Christopher Muller, the dean of the School of Hospitality at Boston University.

“While this bill requires more of the industry, it also requires more oversight from the government.”

Muller, who was an expert witness in the landmark Jack in the Box E. coli outbreak case of 1993, calls the Modernization Act an “incredibly broad-reaching” bill with “very strong implications for the restaurant business.”

“It is an impressive restoration of the original idea for the FDA,” Muller says. “Having been on the original Jack in the Box case, the restaurants really took it on the chin. The FDA has to have more regulatory authority to stop bad food getting into the food chain.”

While all sides seem to be praising the Modernization Act, there is one loophole that has food safety advocates tempering their enthusiasm. The bill exempts small farms that do $500,000 or less in annual sales and sell within a 275-mile radius from its new regulatory oversight.

“An individual restaurant that is promoting its use of local products may be getting its products from a farmer who is exempt from [the new] rules,” Klein says. “For those farms, the landscape is exactly the same as it has always been, which is as safe or as unsafe as the farmer has always been producing. That’s something restaurants might want to consider.”

It is in part because of this loophole that Klein says the FDA Modernization Act is “definitely not a panacea.”

“This bill makes huge strides in improving the FDA,” she says. “Does it make it a perfect regulatory agency? No. Does it make the entire food safety system in this country perfect? No.”

For one thing, the U.S. needs to improve its ability to trace food to its origin, Klein says. She also says she would like to see a single agency regulating the entire food supply instead of the current system, which splits oversight between the FDA and the USDA.   

“This is not the end in improving the food supply, for sure,” Klein says. “But is it a great stride forward? Absolutely.”