A FSMA Shakeup in the Future?

The Trump administration has proposed a reorganization of the federal government that would dramatically change the way that food safety is handled. The plan seeks to consolidate the various agencies that regulate food in the United States so that their functions are housed under a single roof.

This is Not a New Idea; But is the Change a Good Idea?

That would be a big change from how the United States presently handles food regulation at the federal level. Right now, there’s two big agencies that do that. the United States Department of Agriculture deals with meat, poultry and catfish through their Food Safety Inspection Service. The Food and Drug Administration, meanwhile, is the subdivision of the Department of Health and Human Services that regulates every other kind of foodstuff.

The current proposal suggests a streamlining that would see the functions of the FSIS and the FDA consolidated under a single roof. The new entity would be called the Federal Food Safety Agency and would operate under the USDA. Although the FDA would no longer regulate food, it would still be charged with the regulation of drugs, dietary supplements, and medical devices, and be reorganized as the Federal Drug Administration.

This is not exactly a novel idea. The Obama administration also sought to reorganize how food is regulated by consolidating the functions of the FDA and the USDA. They sought to consolidate in the opposite direction, however; rather than choosing the USDA as the single agency to regulate food, the Obama administration had hoped to streamline the regulatory framework by transferring the USDA’s meat-related responsibilities to the FDA.

Ultimately, Obama’s proposal to streamline the USDA and FDA stalled and died at the hands of a Republican-controlled Congress that was loathe to hand him a legislative victory. What we got instead was the Food Safety Modernization Act, or FSMA. It granted the FDA mandatory recall authority, amongst other new powers, and restructured large parts of the legal framework through which the FDA regulates most foods. It did not consolidate the FDA and the USDA, as the Obama had originally sought to do.

The distinction between that unsuccessful consolidation and the current proposal by the Trump administration is an important one. To understand why, we need to take a closer look at the USDA, which operates somewhat differently than other branches of the federal government.

The Breakdown

The USDA, you see, isn’t just an agency that regulates agriculture. It’s also charged with the promotion of agriculture. These two different objectives are sometimes in tension with one another. Critics say that the USDA can’t properly regulate agriculture if they’re also in the business of promoting it. They say that the USDA is too closely tied to the business of agriculture; that it receives too much money from agribusiness titans like Monsanto, and that employees like department head Sonny Perdue are compromised by their experience in and connections to Big Ag. It’s also been alleged that the USDA has no business carrying out some of the functions that it’s been charged with, like issuing guidelines about what people should and shouldn’t eat. One food industry observer quoted by Time Magazine said that “tasking the government agency that manages America’s food production with crafting nutrition policy is akin to “putting the fox in charge of the hen house.”

The Good and the Bad

The key distinction between Trump and Obama’s proposed reorganizations, then, is that shifting regulatory power to the USDA might strengthen the financial connections between agriculture and the federal government, while shifting it to the FDA, as Obama unsuccessfully tried to do, might weaken those ties. The Trump administration move would expand the dual mission of promotion and regulation at the USDA from meat, poultry, and catfish to the entire food system.

That could act as a booster for the agriculture industry, kick-starting growth by opening up levers of power for farmers to shape legislation at the federal level. Streamlining the system that we have for regulating food could eliminate redundancy, eliminate bloat at the federal level, and save millions of dollars. It would also bring the US in line with their international peers in Canada, the United Kingdom, and the European Union, all of which have reorganized and consolidated their food safety regulations in the recent past.

It could also weaken the regulatory environment for food overall. If the food industry and the agency charged with regulating them are bound to one another by too many financial and interpersonal ties, then it stands to reason that groups or individuals within the food industry could exploit those ties in order to shape the regulatory framework around their business as they see fit. Stack the agency that’s charged with regulating food with former industry executives, and it’s possible that the agency will take a softer stance towards violators than they otherwise would have.

At the moment, the hopes of a leaner, more efficient food inspection regime in the United States are just that – hopes. The plan to consolidate the FDA and the USDA are part of a larger proposed reorganization of several different departments of the federal government. That reorganization can’t be executed unilaterally; to achieve the reorganization, Trump needs the consent and assistance of Congress. So, for now, the plan heads towards a politically uncertain future. The proposed USDA/FDA consolidation is a slim part of the overall plan, taking up just a few pages, and it’s light on details.

According to an article by Quartz, “Right now the federal government spends close to $2.3 billion a year on food-safety programs. The USDA employs about 9,200 people to handle meat inspections with an annual budget of $1 billion. The FDA handles just about everything else with an annual budget of $1.3 billion and 5,000 employees. Trump’s proposed plan does not indicate budgeting or staffing would be cut.”

It does not include specifics as to whether the $2.3 billion budget or 14,000+ employees at the two agencies would be affected. We will just need to wait and see.

By: Sean McNulty, Contributing Writer (Non-Lawyer)