New Investigation Finds FDA’s Food Safety Division Is ‘Broken’

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Last week, Politico published the results of an in-depth, months-long investigation into the Food and Drug Administration’s (FDA) regulation of our nation’s food supply. The findings? The agency “is failing to meet American consumers’ expectations on food safety and nutrition.” 

The Politico investigation, which focuses chiefly on food safety, nutrition, and structural issues within FDA, includes interviews with dozens of current and former senior FDA officials, industry representatives, members of Congress, and trade groups—all of them familiar with the inner workings of the FDA. Those who spoke with Politico for the investigation characterized the agency’s regulation of the food supply invariably as “ridiculous,” “impossible,” “broken,” “byzantine” and “a joke.” The piece notes even many agency supporters are now “questioning whether the agency is making the best use of its roughly $1 billion food budget,” pointing out that even though around two-thirds of that budget goes to pay for food safety inspections, “the number of food safety inspections performed each year has been going down despite increased resources.” Such complaints about the FDA—that the agency consistently does less with more—have been at the heart of my own criticisms of the agency over the years.

The Politico piece opens by discussing the FDA’s inept and ham-handed response to an extensive outbreak of foodborne illness—caused by tainted spinach—that sickened people in 10 U.S. states last year.

“This wasn’t supposed to happen,” the investigation continues. “It’s been more than 11 years since Congress passed a sweeping food safety law designed to prevent this type of health risk…. Congress has ramped up FDA funding over the past decade, but deadly outbreaks keep happening and it often takes the agency too long to respond.”

The aforementioned “food safety law” refers to the Food Safety Modernization Act (FSMA), which was passed by Congress in 2011. The much-ballyhooed law, I explained in a 2012 law review article that takes a critical and historical look at food safety regulations, was intended to give the agency “more power to crack down on food safety scofflaws and decrease the incidence of foodborne illness across the country.”

FSMA supporters—who included an unholy alliance of large, rent-seeking food companies and misguided public health activists—claimed the law would be a success. But, as the results of the Politico investigation suggest, FSMA advocates sold Americans a bill of goods. For example, as the investigation notes (and I detailed last year), foodborne illness rates have not decreased since FSMA was adopted.

Surprised? You shouldn’t be. Even if FSMA had been implemented to perfection—an impossibility for any law—it was destined to be an expensive scheme that would fail to improve food safety outcomes. We know that because the FDA’s own, best-case data showed FSMA’s maximum impact on foodborne illness would be negligible at best.

The new Politico investigation was authored by the paper’s veteran senior food and agriculture reporter Helena Bottemiller Evich, whose reporting has focused on the FDA and USDA for more than a decade. Though many of the issues featured in the story have been widely reported, the breadth, depth, and sheer intractability of the problems the investigation reveals are what make it so timely, important, and damning at once.

“It’s kind of a strange story because almost nothing in it is new or surprising to those who work in the food space, but this level of government dysfunction is both surprising and shocking to those outside of food world,” Bottemiller Evich told me by email this week. “It’s unusual to have such broad consensus on something—consumer advocates, the food industry, government officials all broadly agree that FDA’s food division is not working. It’s a broken situation hiding in plain sight.”

Bottemiller Evich’s piece has spurred a host of interesting responses. Commentators have characterized the investigation as “horrifying” and a classic example of Public Choice Theory. Some Members of Congress have used the investigation as a reason to call on the FDA to answer for its shortcomings. (Where have these same elected officials been for the past, oh, several decades?)

One of the more interesting responses to the Politico piece came from former senior FDA official Michael Taylor, who in a subsequent op-ed noted the “damning but fair picture” the investigation paints. He called for the FDA to be broken up, with its food safety oversight authority handed to a single food safety agency. That’s a plan that many—me included (though with plenty of caveats)—think could yield real results.

We’ve arrived at a point where most everyone seems to agree the FDA is falling short of fulfilling its mission and duties. But people still disagree about how to fix that fundamental problem. I think the ultimate problem isn’t, as the investigation suggests, that the FDA isn’t meeting consumer expectations or doing enough. Rather, I think the fault lies with the politicians, bureaucrats, and advocates who’ve convinced Americans that supporting bigger FDA budgets and stricter food regulations, including FSMA, will make our food supply safer and improve nutritional outcomes. The FDA has demonstrated it can’t do big things. Reducing the agency’s budget and narrowing its mission could help it to succeed at the small stuff.

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