Salmonella in eggs, peanuts, tomatoes, and spinach; and melamine in pet food and candy imported from China… With a regularity that has become downright terrifying, the food safety system in the United States has given us ample evidence that it has broken down completely. And so, in a small miracle of legislative activism, Democrats in Congress finally mustered the will and the votes to act, passing H.R. 2751 yesterday, not for the first time, but for the second time in the Senate and the third in the House. (A mistake on a technicality—Senate failure to follow an arcane procedure that allows everyone to pretend the bill it just passed originated in the House, where all tax legislation is required by the Constitution to begin its journey into law.)
Many people deserve credit for this December miracle, although my hat is especially doffed for Representatives John Dingell (D-MI) and Henry Waxman (D-CA) in the House and Senator Richard Durbin (D-IL). Dingell, the longest serving member of the House, had taken to calling the legislation “my bill” as in “where’s my damn bill?” growled with warm ferocity to his staff whenever the matter arose in his mind during the long months of waiting for the Senate to take action.
The new law covers the 80 percent of the American diet—everything but beef and poultry—that is regulated by the Food and Drug Administration (FDA). The old law it replaces was so weak that it did not give the agency authority to order recalls of poisoned food. Instead, the agency had to depend on the voluntary cooperation of food processors. The situation was so unbearable that a rare coalition evolved, including the Grocery Manufacturers, consumer groups, the Center for Science in the Public Interest, and the Pew Center’s project on chemicals and food.
The new law gives the FDA dramatically expanded authority to inspect, recall, and punish the purveyors of tainted food. It even goes so far as to require the FDA to inspect all the food processing facilities in the U.S. a minimum number of times—the first time Congress has been that prescriptive in instructing an agency how to do its job in any health, safety, or environmental status other than the law that requires the Department of Agriculture to have a representative present whenever cattle are slaughtered. Finally, the law requires importers of food from abroad to certify that it was produced under standards equivalent to the American system, a very tall order considering the strange origins of food we import from places like China, where regulation is non-existent.
But we have too many statutes on the books these days that have become dead letters because the agencies charged with the responsibility of implementing them have such scarcity of resources that they cannot even make a respectable start on exercising their new authority. If the new Republican majority in the House decides not give the FDA enough resources to get a grip on its new responsibilities, this major health and safety accomplishment of this troubled Congress will be undercut.
Rena Steinzor, Professor of Law, University of Maryland Carey School of Law. Bio.
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