Americans are dying from contaminated food -- but Congress doesn't seem to care

In 2010, after thousands of Americans were sickened by tainted spinach, peanut butter and eggs, Congress passed the Food Safety Modernization Act (FSMA), a sweeping reform bill that gave the Food and Drug Administration (FDA) new powers to help ensure the safety of the nation's food system. It was the nation's first major food policy legislation since FDR signed the Food, Drug and Cosmetic Act in 1938. But now, five years later, according to a recent POLITICO investigation, not a single one of the new rules has been implemented and the entire mission has a $276-million funding gap. So what happened?

The FSMA, which affects every facet of the nation's food system, was a big victory for Rep. John D. Dingell (D-Mich.), the bill's author, who had been advocating food-safety reform for two decades. (Dingell stepped down in January and was succeeded by his wife Debbie Dingell, also a Democrat.) The bill gives the FDA — which is responsible for 80 percent of America's food supply — additional authority to regulate food facilities, establish safe produce standards, issue mandatory food recalls, oversee imported foods and require improvements in surveillance and outbreak response. The new legislation also requires the agency to undertake over a dozen rule makings and issue at least 10 guidance documents. It had wide support from both trade associations and consumer advocacy groups, and was passed with strong bipartisan margins.

"Americans are dying because the Food and Drug Administration does not have authority to protect them, and American producers and agriculture are being hurt," Dingell told the Washington Post after the House passed the 159-page bill by a vote of 283-142 in July 2009. "This will fundamentally change the way in which we ensure the safety of our food supply." He suggested that preventing a mere 10 percent of outbreaks of food borne illnesses would save the economy $15.2 billion. That figure is based on the estimate, made by former FDA economist Robert Scharff, that foodborne illness costs about $152 billion a year.

The act is "bigger than anything since Teddy Roosevelt cleaned up the meatpacking industry," writes Helena Bottemiller Evich, who reports on food and agriculture for POLITICO. "The law mandated more inspections and much tougher anti-contamination standards for everything from peaches to imported pesto sauce, and it placed more emphasis on preventing outbreaks than on chasing them down after people become sick."

In addition to conferring new powers to the FDA, the FSMA gives new responsibilities to food producers and importers — including some 360,000 facilities here and abroad — such as paying an annual $500 registration fee to help fund the FDA's inspections, research and enforcement of the law.

But trouble started brewing early on. In February 2011, barely a month after President Obama signed the FSMA into law, Rep. Dingell wrote a letter to the House budget and appropriations committees, expressing his concerns about the efforts to slash FDA funding:

[I]t is demonstrably clear that preventing outbreaks of food-borne illness is far less costly to our government, business, and society than allowing them to occur…While I understand the need for fiscal responsibility in this time of unprecedented budget deficits, it is imperative that we not compromise public safety in the name of being 'penny-wise but pound foolish.'

Today, with none of the new rules implemented and a huge funding gap that, according to the Congressional Budget Office, cannot be made up in the fees to producers, the American public is still waiting for a better food safety system. And as the funding shortfall continues, so too do the potential dangers. Between 2005 and 2010, the number of imported goods that the FDA regulates increased by 35 percent, yet the agency inspects or samples less than 1 percent of them.

It's an impossible task: About $2 trillion worth of products from more than 230 countries enter the United States every year. So the FDA must focus heir efforts on inspections based on risk. In 2012 (the most recent year for which data is available), the FDA and the states under contract with the agency inspected or attempted to inspect more than 24,000 domestic food facilities, while the FDA inspected more than 1,300 foreign food facilities. Those numbers are up from a little over 19,000 domestic food facilities and less than 1,000 foreign food facilities the previous year.

And while the FDA continues its Sisyphean task, people continue to become ill, be hospitalized and die from food they believed was safe to eat. The Centers for Disease Control and Prevention (CDC) estimates that each year roughly 1 in 6 Americans (or 48 million people) gets sick, 128,000 are hospitalized and 3,000 die of food borne diseases. The leading causes of annual deaths are Salmonella (378/year), Toxoplasma (327/year), Listeria (255/year) and norovirus (149/year). The food industry also takes a big hit from tainted food, with an estimated loss of more than $75 billion in lost sales, legal expenses and recalls.

Evich characterizes the current situation as an opportunity squandered: "A law that could have been legacy-defining for President Barack Obama instead represents a startling example of a broad and bipartisan policy initiative stymied by politics and the neglect of some of its strongest proponents." She adds:

The breakdown of food-safety reform is also a reminder of how quickly momentum can be lost without leadership. The White House has routinely put nutrition policy ahead of food safety, sat on key regulations for months and made only halfhearted attempts to fund the law, according to dozens of interviews with current and former government officials, industry leaders and consumer advocates. Congress, too, bears blame: With no real pressure from the White House or the public, Capitol Hill has given the FDA less than half of what the agency says it needs to actually enforce the new rules, once they take effect. And many of the industry lobbyists and advocates who once championed the measure have turned their attention to other, more pressing policy battles.

In the meantime, outbreaks continue to happen. Since the FSMA became a law, thousands of people have become sick and several dozen have died from contaminated cantaloupes, salad greens, pomegranate seeds, sushi tuna and cilantro, to name a few. Earlier this year, Blue Bell Creameries recalled their entire line of ice cream due to a Listeria outbreak.

The FSMA also has its critics. Some farmers and their GOP allies on Capitol Hill argue that the law gives too much power to the federal government, places undue financial and logistical burdens on food producers and won't actually make Americans any safer.

"The federal government will tell our farmers and ranchers how to do something they've been doing since the dawn of mankind," said Rep. Frank D. Lucas (R-Okla.). "It goes too far in the direction of trying to produce food from a bureaucrat's chair in Washington, D.C."

Sarah Parsons, a former Farm Fellow at Duke Campus Farm, a one-acre, student-led sustainable farm and a multiyear project to construct an educational farming facility on Duke University land, argues that the new regulations create a burden on smaller conventional as well as organic farms:

FSMA has the potential to be costly for some farms, particularly smaller farms, and it places a large logistical burden on farmers. According to the FDA, the costs required to update a farm’s operations to be in compliance with the new FSMA rules can range anywhere between about $4,500 for a small farm to about $30,500 for a larger farm. When considering a small farm that grosses $25,000 a year, $4,500 is a large cost. Such high costs can also deter beginning farmers and potentially put smaller farms out of business. FSMA … requires intensive documentation that can be unreasonable for smaller farms to complete, given the smaller size of their staff. Additionally, should a farm want to maintain sales to direct markets (such as restaurants and farmers’ markets), it seems unnecessary that farms be required to comply with FSMA rules. It appears as though the intent of FSMA is to create additional safeguards against the risk of food contamination at a large scale. In instances, where large amounts of produce are being transported to markets and institutions across the country, then there is a place for FSMA …

However, in instances where it is easy to trace food back to the farmer (i.e. when food is sourced directly from the farm to a restaurant or a farmers’ market), it does not seem as necessary to require these additional regulations and safeguards. On a small scale, a farmer, who has a direct relationship with a restaurant or his customer, is already heavily affected by the burden of accountability. It is in the direct interest of the small farmer to provide quality produce, because he is likely to lose his customers if he does not. The onus of accountability may be burden enough …

Another major issue with FSMA is that it creates regulations only for biological contaminants on produce. Therefore, it places an undue burden on farms that use organic and sustainable practices. Conventional farms that use synthetic chemicals are not included in the new FSMA regulations. This reality raises the question that we, as a society, have to ask ourselves. Should we not be equally concerned about chemical contaminants on our food as we are biological contaminants?

The FSMA's supporters and critics should be able to agree on one thing: Americans are still getting sick and dying from the food they eat, in worrisome numbers. A large reason for that is the fact that the nation's food safety system is broken. And the FSMA isn't fixing it — at least not yet. Perhaps the FSMA breakdown is a symptom of a much bigger broken system, one in which historic legislation meant to protect public health can be enacted — and then immediately forgotten by those who enacted it.

Evich points out that the country's food safety system was "born out of crisis" when the 1906 Pure Food and Drug Act and Federal Meat Inspection Act was passed as a response to the horrifying conditions at the meatpacking plants in Chicago, which were brought into public view by Upton Sinclair's book, "The Jungle," published in the same year. Since then, Evich says, the system for safeguarding America's food supply "has unfolded in a piecemeal and reactive fashion," which has "created a regulatory monstrosity of a dozen poorly coordinated federal agencies that give the illusion of comprehensive coverage but in reality are woefully inadequate to the task of protecting the nation’s food supply."

But without proper funding or a champion in Washington, the FSMA remains as woefully inadequate as the system it was meant to fix. "Whether you agree with him or not, this president is picking his own legacies and he is stepping it up as he nears the end," said Dan Flynn, the editor-in-chief of Food Safety News. "And when he is off doing prison reform, trade, Cuba, Iran and the others, it is easy to see how food safety could fall between the cracks."

In "The Jungle," a speaker at a socialist rally pleads to the working man to free himself from wage slavery: "Can you not see that the task is your task — yours to dream, yours to resolve, yours to execute?” He might as well have been speaking to President Obama and Congress about their task to protect the American people from the food they eat.