food safety, public health, regulatory reform
In the last several years, dramatic failures of the nation’s food safety system have sickened or killed tens of thousands of Americans, and caused billions of dollars of damages for producers and distributors of everything from fresh vegetables to granola bars and hamburger meat. In each case, the outbreak of food-borne illness triggered what can only be described as a frantic scramble by health officials to discover its source. Inevitably, the wrong lead is followed or a recall is too late or too narrow to prevent further illnesses, and the government has to defend itself against withering criticism. Americans expect more from the experts at the Food and Drug Administration (FDA) and their counterparts at the Department of Agriculture, but the simple truth is that they are ill-equipped to deliver. The food safety system typifies the debilitated state of the entire regulatory system that Americans rely upon to protect their health, safety, and environment. The five “protector agencies” – FDA, the Occupational Safety and Health Administration (OSHA), the Consumer Product Safety Commission (CPSC), the National Highway Traffic Safety Administration (NHTSA), and the Environmental Protection Agency (EPA) – all grapple with hefty responsibilities to protect the American public from constantly evolving hazards. The agencies have done an adequate job of eliminating or managing the basic hazards of modern industrial society. Every new car has seatbelts and passive restraints, the use of lead in gasoline and residential paint has been eliminated, and air quality has improved in many areas. Unfortunately, this progress has been marred by a series of high-profile failures. OSHA has failed to prevent musculoskeletal injuries, the leading cause of workplace illness; billions of consumer products enter the country from foreign manufacturing sites that are never inspected by product safety specialists; and the EPA is just beginning to map out a strategy for combating climate change, a threat that could eliminate 40 percent of species and lead to the relocation of hundreds of millions of people by the turn of the century. The agencies’ inability to act swiftly and decisively in the last several decades is largely the result of four problems: severe shortfalls in funding, outdated authorizing statutes, political interference, and an aging, demoralized civil service. Regulatory dysfunction begins with funding gaps that defeat agency efforts to fulfill the statutory mandates assigned by Congress. These shortfalls, which push the agencies into a state of constant default on their most important missions, are compounded by congressional neglect of its oversight and reauthorization responsibilities. With two exceptions – the Consumer Product Safety Commission Improvement Act and the FDA Amendments Act of 2007 – Congress has made no effort to renew and update the statutes in at least two decades. Compounding these problems, the protector agencies operate under the watchful eye of White House political staff who frequently and freely substitute their own judgments for those of agency staff, offering a back door for special interests disappointed in decisionmaking by agency experts to exert inappropriate influence, most often behind closed doors. The solutions to these problems – statutory amendments, an improved budget process, decentralized decisionmaking, and civil service reforms – are not simple fixes. But the alternative is a regulatory system that reverts to a purely reactionary mode, leaving public health, safety, and environmental protection to the whims of the marketplace.
Environmental Law | Food and Drug Law
Center for Progressive Reform White Paper no. 906. 2009.