In passing the Food Safety Modernization Act (FSMA) in 2011, the federal government enacted the most sweeping reform of food safety laws in more than 70 years. The legislation significantly broadened the food safety powers of the Food and Drug Administration (FDA).
FSMA statutes authorize the FDA to regulate how food is grown, harvested, and processed. In addition, the legislation grants supplementary powers to the FDA, including the ability to issue mandatory recalls of food products. Many other regulatory authorizations — including statutes that grant the agency further oversight, inspection, and enforcement capabilities — are included in the bill.
Nearly every piece of legislation has its supporters and detractors, as was the case with the FSMA. The bill passed the Senate by a vote of 73-25, a rather wide margin in what was, at the time, a heavily polarized chamber — something made possible due to the public’s waning patience over the proliferating cases of foodborne illness.
The political majority that buttressed the easy passage of FSMA was indicative of public sentiment. As such, most public and private entities and notable individuals supported the legislation’s passage. However, the enactment of FSMA somewhat narrowed this majority viewpoint, although most still supported any type of effort to suppress the spread of foodborne illness. The opposition, however, has made its grievances known, and many even challenged the law in court.
The debate over FSMA in Congress has resulted in a rare occurrence: a publicly supported bill that also had majority approval in the private sector. Some private industry support for FSMA can be attributed to the fact that food producers were losing billions of dollars annually from product recalls, legal expenses, and lost sales.
Much of the support generated prior to and after FSMA was enacted revolves around preventive measures included in the bill. The Grocery Manufacturers Association, a well-known representative of food and beverage companies, praised FSMA rules, stating, “(The new rules) place new responsibilities on food and beverage manufacturers and provide the FDA with (the) regulatory oversight and authorities it needs to further strengthen our nation’s food safety net … the food and beverage industry is committed to working with Congress, the Obama Administration, and all stakeholders to ensure that Congress appropriates the necessary funding for the FDA to fully implement FSMA.”
Public health advocates and agencies almost universally supported the bill, citing the marked increase in foodborne illness cases and the need to implement preventive measures to supplement the FDA’s inspection roles. Several chambers of commerce also generally supported the bill, as did a plurality of consumer groups. Industry support primarily came from food and beverage manufacturers, producers of supplements and nutritional products, freight and delivery services, and vending machine sales and services.
Recently, the Produce Marketing Association, an organization that supports “production, retail, distribution, and foodservice sectors of the fruit, vegetable and floral industries” — along with 21 other organizations, submitted a letter to Congressional leaders supporting a proposed increase in the FDA’s food safety budget. This action, which was taken more than four years after the bill was passed, is indicative of the industry’s continued support for food safety measures.
Much of the opposition to legislation such as the FSMA revolves around common themes, including government overreach, favoritism toward big business, and associated costs.
Critics of FSMA rail against the perceived government overreach of food safety legislation. Such critics often cite the increased frequency of food safety inspections, particularly for small farmers and production facilities. Diane Katz, a senior research fellow at the Heritage Foundation, claims that the bill will unnecessarily target home-based businesses that make food products for local markets. Katz further argues that there are certain provisions that small producers must follow, including the requirement to produce risk-based preventive and hazard plans, which are both cost prohibitive and unnecessary.
Some operators of small farms and other low-revenue facilities state that the new rules pose an economic burden that will be difficult to handle. For example, critics of the FSMA point to the fact that many farms will not qualify for financial exemptions included within the legislation, another facet of the law that will further cut into the limited profits of smaller operations. Strict water testing and harvesting requirements are also of particular concern to low-revenue producers.
The cost of implementing food safety legislation is another talking point of critics. According to naysayers, the regulatory expenses associated with FSMA will far outweigh the additional food safety benefits, if any. Purportedly, these costs will lead to a reduction in competition and innovation, a direct result of less involvement in the industry from small and medium-sized food businesses that will disproportionally bear the cost burden.
Then there are the ostensible added costs, which are a deal-breaker to many. The Congressional Budget Office approximates that an additional $1.4 billion would be needed four years after the law is enacted, followed by additional millions of dollars to be required from the private sector.