Eat your E. coli and apricots! Num num!
Eat your E. coli and apricots! Num num!
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A little over two years ago, Congress passed and President Obama signed a historic reform to America’s food safety laws, the Food Safety and Modernization Act. It was the first major update in over 80 years to the laws that aim to keep our food from killing us.

The new law gave the feds broad new enforcement powers to do things that most Americans probably thought they could do already — issuing mandatory food recalls, for example, and requiring frequent inspections of the riskiest food production facilities, and prosecuting executives of companies that knowingly ship contaminated food. Good news!

And now for the bad news. It looks like several of those new protections were quietly gutted earlier this year by a White House office charged with reviewing new regulations for their impact on corporate America. During a drawn-out review period, the White House Office of Management and Budget (OMB) rewrote rules drafted by the Food and Drug Administration (FDA) that spelled out how the agency would implement new safety protocols for food producers.

When Congress passed the food safety law, it for the first time required food producers to design, implement, and test risk-based food safety plans. The law required testing for contamination in food processing facilities, and then testing the foods themselves. The OMB revisions axed the mandate for verified food safety plans and dropped virtually all the testing requirements, turning them into voluntary protocols. (And we know how well it works out when the food industry regulates itself.)

Without requirements for testing and verification of safety plans, the FDA will remain powerless to stop things like the deadly 2011 listeria outbreak in cantaloupe caused by shockingly unsanitary storage conditions at a Colorado farm. Had that farm been forced by law to produce a safety plan and then to have that plan verified, much less to have its produce tested, the people who died would likely be alive today.

Thanks, OMB.

I asked food safety superlawyer Bill Marler (managing partner of the Seattle law firm Marler Clark and a key player in the lawsuit against Jack in the Box over E. coli poisoning in its hamburgers that killed four children in 1993) for his take on all this. He pointed out that the food industry by and large supported the testing requirements because they leveled the playing field between good corporate citizens that took food safety seriously and bad guys, like the Peanut Corporation of America, that did not. Then along comes OMB “opening up a loophole for people to ignore” the new law, Marler said.

Alarm over these changes isn’t restricted to food safety crusaders. I reached out to Michael Doyle, director of the Center for Food Safety at the University of Georgia, a microbiologist and food safety expert closely associated with industry who has in the past been skeptical of onerous testing requirements — and who was also once in the running to run the U.S. Department of Agriculture’s food safety division. I asked him for his take on the OMB changes and he responded via email with what I can only characterize as dismay:

I do not believe OMB has the expertise to understand the potential adverse public health consequences of its actions, nor does the agency understand the importance of verification testing to a food safety plan and its relevance to enhancing the safety of food.

Or as it’s often said on the internet: “The stupid! It burns!

Food-safety advocates had expressed relief back in January when OMB finally released these rules. The White House had been accused of delaying the law for months by refusing to publish the new rules. Some speculated it was out of fear that the rules would meet election-year repercussions from the politically powerful food and agriculture industry. This tiptoeing around corporations had become a hallmark of the post-2010 Obama White House.

The revelation about the OMB’s changes to the law comes from an unlikely source — the federal government. As originally reported by industry publication Food and Chemical News [sub req’d] and expanded upon by Food Safety News, some good soul in the Department of Health and Human Services (the parent agency of the FDA) posted documents on a government website that detailed the exact revisions OMB made to the food safety regulations. Ownership of these kinds of cuts are typically a well-guarded secret.

We already knew that Republicans in Congress were unlikely to give FDA the money to fully implement the law — and the sequester is likely to delay the law further. But there is still time to fix OMB’s changes. The comment period on the new food safety rules runs until mid-May.

If you can stomach the bureaucratese, you, too, can leave a comment for the FDA about the changes to the rule here. Believe it or not, the agency reviews every one of them. It may be the best chance you have to ensure that the Food Safety and Modernization Act actually lives up to its name.