Is a single food safety agency possible?

Departments - Legislative Update

It’s a question that continually arises in the industry and has begun to resurface more regularly on the federal level.

August 6, 2018

DAVID ACHESON, Founder and CEO, The  Acheson  Group

Should the U.S. have a single food safety agency? Is it possible? It’s a question that continually arises in the industry and has begun to resurface more regularly on the federal level.

Most recently, it was a topic of the Trump Administration’s proposed  Reform Plan and Reorganization Recommendations  which was released June 20, 2018. In the document, the current system was described as a “fragmented and illogical division of Federal oversight” of food safety. The plan proposed reorganizing the USDA Food Safety and Inspection Service (FSIS) and the food safety functions of the FDA into a single agency within USDA.

It’s not the first time that consolidation or increased coordination has been proposed — even under the current administration. One recent example is that of FDA and USDA taking their own step toward defragging the system with the January 2018 formalization of an  inter-agency agreement  for increased cooperation and coordination. The agreement, on which FDA Commissioner Scott Gottlieb and U.S. Agriculture Secretary Sonny Perdue worked together, “identified several areas where we can strengthen our collaboration to make our processes more efficient, predictable, and potentially lower cost to industry; while also strengthening our efforts to ensure food safety.”

That move may have been, at least in part, a response to the January 2017 Government Accountability Office (GAO) report which, while not going so far as to endorse a single entity, did recommend that a national strategy be adopted as “a first step toward improving the federal food safety oversight system.” The report was compiled in response to a Senate request to examine efforts toward and options for addressing fragmentation in the federal food safety system.

Additionally, while noting that FDA and USDA have primary responsibility for food safety oversight, the report noted that the safety and quality of the U.S. food supply is “governed by a highly complex system stemming from at least 30 federal laws that are administered by 16 federal agencies.” Given that, I’d say consolidation and defragmentation is a bit more complex than moving FDA food safety functions to USDA.

However, I am, and have long been, a strong advocate of consolidation and a single agency — but it has to be done right. If we were to disregard the food safety activities that fall under the other 14 agencies, moving FDA under USDA has the advantage that some infrastructure exists already. But the clear disadvantage is the inherent competitive nature of the two agencies and the fact that one will be “in charge” of the other. Making that work will take a generation of change and is not realistic.

Thus, I am not sure that putting a new system under USDA — or FDA — is the right approach. Rather, given the need for the creation of a major FDA/FSIS hybrid, it may be better to develop a new agency altogether without all the USDA or FDA baggage.

But, even as a strong advocate, and even with the increased emphasis on creation of a single agency, I just am not sure that it can realistically happen, at least not as simply as the Administration seems to propose.

Take, for example, just a few of the challenges noted in the GAO report (besides the current number of agencies), such as that of the differing statutory authorities of FDA and FSIS; the inspection differences in which FDA frequency is focused on associated risk, while USDA/FSIS continuously examines the carcasses/parts of covered animals and all processed food products; and the issues of resource allocation not necessarily connected to risk.

Additionally, it’s interesting that the new report recommends moving FDA activities to USDA when FDA currently regulates 80% of the food supply. Not to disparage USDA by any means, but would that agency be as adept at demonstrating “strong and effective leadership in food safety and maintain(ing) an expert understanding of food safety issues from the farm to the fork” (as the report states) if it were to increase its oversight by 80%? If it were to add regulation of the vast array of farm and food production now regulated by FDA to its current meat, poultry, and egg product expertise? If it were to have to inspect all 150,000 domestic food facilities, not to mention the 71,000 foreign food facilities, registered with FDA (as of 2017)?

It’s also interesting that the Administration recommended USDA as the agency which would absorb FDA, when it is considered that USDA was the one agency that disagreed with much of the GAO report, including the need for a national strategy and the ability of a strategy to “result in significantly different outcomes” in protecting public health, and citing the fact that the agencies do have many collaborative efforts, activities, and mechanisms currently in place.

Further USDA is not focused on public health as a primary mission unlike the public health-centric Department of Health and Human Services of which FDA is a part.

There are multiple challenges to the consolidation of food safety oversight under a single agency. But that does not mean we shouldn’t work toward that end. Change is rarely easy, but that also doesn’t mean it’s wrong. Thus, a single food safety agency should be an ideal for which we strive. An endeavor with which all stakeholders should be involved, with careful step-by-step planning and gradual alignment that takes all the challenges and opportunities into consideration.

The more steps that are taken toward that end, the more ideas and options that are generated — whether they be a GAO push for a national strategy, an interagency agreement for cooperation, or an Administration’s proposal for consolidation — the more the agencies can become aligned and the closer we may come to jurisdictional unity.

As former Associate Justice of the U.S. Supreme Court William J. Brennan, Jr. said, “We must meet the challenge rather than wish it were not before us.”