Food Safety Working Group: Modest Proposal #3 - UPDATE

Updated March 23, 2009

Original article posted March 21, 2009

The food safety system now in force in the United States is based on Voluntary Compliance. One question that the President Obama's new Food Safety Working Group must address is how well this approach is working – or whether it is working at all.

Voluntary Compliance is a widespread government tool. The Internal Revenue Service uses it to collect income taxes. Cities and states use it to control vehicle speeds and limit impaired driving. And USDA and FDA use it to procure industry compliance with food safety laws and regulations.

Central to the success of Voluntary Compliance is the existence of significant consequences to non-compliance. IRS imposes financial penalties for late payment or non-payment of income taxes. Drivers who exceed a speed limit risk fines – often adjusted to the magnitude of the speeding offense. Impaired drivers may have their licenses suspended, or even face a jail sentence.

What, then, are the consequences that confront a food processor who contravenes a federal or state food safety regulation?

The most likely consequence is that the processor will be asked to recall one or more production batches. If the processor agrees, the only consequence is the cost of the recall – including lost sales, returned product and temporary loss of consumer confidence. If the processor demurs, there is no recall – unless the situation is so dire that the FDA or USDA is prepared to go to court to seek a recall order. By this time, of course, the recall is often moot. Most of the recalled food will already have been consumed.

Consider, by comparison, the recent situation in Texas. The Texas Department of State Health Services (DSHS), on February 12th, ordered – that's right, ordered – Peanut Corporation of America to recall "... all products ever shipped from its Plainview plant." When Texas did not receive a response from the company, the state stepped in and took over the recall on February 20th. 

Texas law gives the State's health department mandatory recall authority – the power to demand a recall – when it believes that a situation presents "... an immediate and serious threat to human life or health." And the State can, in the absence of cooperation from the food company, step in and take over the recall. 

FDA does not have this power. Neither does USDA. 

These two federal agencies, responsible for ensuring the safety of all foods shipped interstate or imported into the United States, have less recall clout than the state of Texas and several other US state agencies.

Other countries have equipped their national food safety enforcement agencies with mandatory recall authority. The Canadian Food Inspection Agency has this tool in its enforcement arsenal. So does Food Standards Australia New Zealand. This tool is rarely used. Its mere existence is enough to ensure industry cooperation with a recall request.

For several years, members of Congress and food safety advocates have been urging the adoption of mandatory recall authority. The Food Safety Working Group should include this useful tool in its list of recommendations to President Obama. 

Voluntary Compliance works best when the risk of non-compliance outweighs the reward.

March 23, 2009 Update

In a further illustration of the need for mandatory recall authority at the federal level, FDA today warned consumers against eating peanuts and peanut products sold by Westco Fruit and Nuts Inc. This warning was issued after the company declined to issue a voluntary recall of products that contained peanuts supplied by the Blakely, GA facility of Peanut Corporation of America.