Back to the Future: Obama Recycling Clinton-Era Food Safety Initiatives as New

 At 10:30 AM today, Agriculture Secretary Vilsack, HHS Secretary Sebelius, and Vice-President Biden will issue “key finding,” according to an email from Nick Shapiro, Office of the Press Secretary, in The White House, that was sent to several media outlets. According to press release, entitled President’s Food Safety Working Group: Delivering Results, the Obama administration is going to implement “a new public health-focused approach to food safety based on three core principles: (1) prioritizing prevention; (2) strengthening surveillance and enforcement; and (3) improving response and recovery.” Although these principles are laudable, and anything would be an improvement over the Bush administration’s efforts to put industry profits above the public health, most of what is being announced today is recycled from Clinton years, and all are incremental steps that seek improvements around the edges rather than the much needed structural change to the U.S. food safety system.

What follows is a point-by-point commentary and critique of today’s announced policy changes and renewed initiatives. As I think you will see, there is not a lot radical going on here. (Please click on the Continue Reading link to read more.)

Preventing Salmonella Contamination: Here the press release notes that,” Despite support from consumer advocates and the egg industry, the Federal government has been unable to finalize basic rules on egg safety to prevent contamination.” And this is true, but eggs stopped being the biggest cause of Salmonella infection quite some time ago. In 2007, for Salmonella infections attributed to a food source, the outbreaks were caused by contaminated peanut butter, frozen pot pies, and puffed snack food. Moreover, hard data does not exist with regard to the prevalence of Salmonella in eggs in the United States, making the estimates about potential savings and illness-reduction speculative at best. As the USDA Agricultural Research Service pointed out in a report issued in 2007:

Market egg sampling data has never been collected in the United States on a national basis and no regional sampling data has been collected in 10 years. Salmonella outbreaks continue to be attributed to eggs and no progress has been made in several years in decreasing incidence.

The report then concluded: “USDA does not believe that this project is feasible given current budgets, limited extramural funding sources, and the existence of more pressing food safety issues such as attribution of illness to produce.” Full report here: www.ars.usda.gov/research/publications/publications.htm

The press release also touts an effort of the USDA to, by the end of the year, “develop new standards to reduce the prevalence of Salmonella in turkeys and poultry.” But here, again, the approach is incremental (if not merely symbolic), and fails to consider a better alternative: namely, the ELIMINATION of Salmonella (and Campylobacter) from eggs and poultry, something that was years ago achieved in other countries, like Denmark.

Reducing the Threat of E. coli O157:H7: According the press release, there is going to be “stepped up enforcement in beef facilities,” including “ issuing improved instructions to [inspectors]…to find this pathogen, focusing largely on the components that go into making ground beef.” There is no lack of irony in this announcement given that it is being made as we are in the midst of the second huge recall in two years of intact cuts of beef linked to large numbers of serious E. coli O157:H7 infection—the current recall being that linked to JBS Swift meat processed in Greeley, Colorado, and the previous one involving Nebraska Beef Ltd.

The release also touts the fact that USDA Food Safety and Inspection Service (FSIS) is “increasing its sampling to find this pathogen.” But as a senior FSIS official has already admitted about this increase in E. coli testing, the sampling plan does not even come close to attaining statistically significant results. (I have previously blogged about the largely symbolic nature of this increased testing, and that blog-post can be found here: www.foodpoisonjournal.com/tags/zero-tolerance/

Preventing Contamination of Leafy Greens, Melons, and Tomatoes: And perhaps in what is my favorite bit of tap-dancing and window-dressing, the press release announces that, “[b]y the end of the month, FDA will issue commodity-specific draft guidance on preventive controls that industry can implement to reduce the risk of microbial contamination in the production and distribution of tomatoes, melons, and leafy greens. These proposals will help the Federal government establish a minimum standard for production across the country. Over the next two years, FDA will seek public comment and work to require adoption of these approaches through regulation.” OH, YIPPEE!!! Yet another “draft guidance” from the FDA on produce safety, and a promise that, in two years or so, the agency will “work to require adoption of these approaches.” In other words, no change here. And if you would like to have a look at just how long the FDA has been making“suggestions” on produce safety, have a look at the produce safety initiative announced on May 6, 1998, and the issuance of ‘‘Guidance for Industry: Guide to Minimize Microbial Food Safety Hazards for Fresh Fruits and Vegetables,’’ which was the FDA’s first attempt to the same thing it says it is going to this time try to do again. See here: www.fda.gov/ohrms/dockets/98fr/050698b.pdf And: www.foodsafety.gov/~dms/prodguid.html

One other suggestion of my own: If the FDA wants to get serious about produce safety, then it should read the multiple reports issued by the Food Safety Project at Georgetown University, which can be found here: www.producesafetyproject.org/reports

The press release announces other mostly recycled initiatives, which I will address in a follow-up post. So let me end here by saying that increased food safety efforts are nice, but results are all that matters. And the initiatives announced today may sound good, but they are unlikely to change much.  What is needed is a structural overhaul of the US food safety system. 
 

New Obama Policy Allows States to Be Tougher on Food Safety

During the Bush administration, and its do-anything-help-big-business approach, agencies were required to insert "preemption" language into all regulations, rules, and policies that  the agencies promulgated.  This was intended as an attempt to "protect" corporations from state laws and regulations that had the effect of imposing stricter requirements, especially with regard to product safety.  One big "win" for this approach was the U.S. Supreme Court decision in Reigel v. Medtronic, which held that people injured by a medical device "pre-approved" by the FDA could not file a lawsuit claiming that the device was defective as a matter of state law.  A not so successful attempt to use preemption for food cases was that tried by the Excel Corporation in litigation arising from an E. coli O157:H7 outbreak linked to a Milwaukee-area Sizzler restaurant. In those cases, Excel argued that its admittedly contamianted meat was neither defective nor unsafe because USDA policy at the time only prohibited this deadly pathogen from being in ground beef. (For an op-ed piece I wrote about this USDA policy, see Who does the USDA Really Protect, which can be found here: www.marlerblog.com/2008/08/articles/lawyer-oped/who-does-the-usda-really-protect-when-it-comes-to-deadly-e-coli/)

But now most of the arguments in favor of preempting state law in favor of "uniform" federal regulations are going to be undercut by a just-issued Executive Order that declares a new (or renewed) era of states rights.  The introductory paragraph of the Order is telling and compelling:

From our Nation's founding, the American constitutional order has been a Federal system, ensuring a strong role for both the national Government and the States. The Federal Government's role in promoting the general welfare and guarding individual liberties is critical, but State law and national law often operate concurrently to provide independent safeguards for the public. Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.

Not only does this Order announce a new direction, it requires the heads of all federal agencies to "review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law," and to remove them.  So once more the role of the state in protecting its citizens from unsafe food and other products is restored to its rightful place.  More importantly, the next time that a big food company argues that the USDA said it was okay to poison people, it will likely get laughed out of court. Or at least we can hope so.

To read the full text of the Executive Order, please click on the Continue Reading link.

THE WHITE HOUSE
Office of the Press Secretary
 

For Immediate Release May 20, 2009
May 20, 2009
 

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
SUBJECT: Preemption
 

From our Nation's founding, the American constitutional order has been a Federal system, ensuring a strong role for both the national Government and the States. The Federal Government's role in promoting the general welfare and guarding individual liberties is critical, but State law and national law often operate concurrently to provide independent safeguards for the public. Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.


An understanding of the important role of State governments in our Federal system is reflected in longstanding practices by executive departments and agencies, which have shown respect for the traditional prerogatives of the States. In recent years, however, notwithstanding Executive Order 13132 of August 4, 1999 (Federalism), executive departments and agencies have sometimes announced that their regulations preempt State law, including State common law, without explicit preemption by the Congress or an otherwise sufficient basis under applicable legal principles.
 

The purpose of this memorandum is to state the general policy of my Administration that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption. Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect these circumstances and values. As Justice Brandeis explained more than 70 years ago, "[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."
 

To ensure that executive departments and agencies include statements of preemption in regulations only when such statements have a sufficient legal basis:
 

1. Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation.
 

2. Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption, including the principles outlined in Executive Order 13132.
 

3. Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation.
 

Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory authorities. Heads of departments and agencies should consult as necessary with the Attorney General and the Office of Management and Budget's Office of Information and Regulatory Affairs to determine how the requirements of this memorandum apply to particular situations.
 

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
 

The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register.
 

BARACK OBAMA