August 31, 2014

Food Stuff: Keep it Simple, Senate!

Kimberly Egan

Kim Egan, Partner, DLA Piper LLP

Teddy Roosevelt, my hero, created the modern food safety system, such as it is. Roosevelt read Upton Sinclair’s book about meat-packing conditions and was so revolted that he told the Department of Agriculture to investigate. The Department of Agriculture’s report was also revolting. Roosevelt waved it around in front of Congress and demanded legislation.

But the beef industry had already visited Congress and the Greatest Legislative Body in the World did nothing.

So Roosevelt pulled a Wiki and leaked parts of the revolting report to the public. Outrage ensued. On June 30, 1906, President Teddy Roosevelt signed the Pure Food and Drug Act of 1906 into law, which aimed to prevent “the manufacture, sale, or transportation of…poisonous or deleterious foods.” Food back then included anything “used for food, drink, confectionery, or condiment by man or other animals, whether simple, mixed, or compound.” By 1938 that definition had shrunk to the now infamous “food and drink and chewing gum.”

The 1906 Act was only a few pages long and easy to understand.

  • You couldn’t sell food made from “a filthy, decomposed, or putrid animal or vegetable substance.”
  • You couldn’t sell food from “a diseased animal.”
  • You couldn’t sell food if you had added a “deleterious ingredient” to it.
  • You couldn’t sell food if you had removed “any valuable constituent” from it.
  • You couldn’t sell food if you had packed it in a way that negatively “affect[ed] its quality or strength.”
  • You couldn’t sell food if you had “colored, powdered, coated, or stained” it to make it look better than it was.
  • You couldn’t sell food that was masquerading as some other food.
  • You couldn’t sell food without telling the consumer how much morphine, opium, cocaine, heroin, chloroform, or cannabis was in it.

TwinkieWe could have a lot of fun with these rules – does a Twinkie pass any of these tests? Is the very concept of food coloring legal? How about fat-free milk? Spam? Why haven’t I seen a “contains morphine” label recently? Etc.

But my real concern is that the 2010 food safety bill (S. 510) that the Senate passed on Tuesday is not, shall we say, as “crisp” as the 1906 Act. On the seemingly simple subject of how to grow fresh fruits and vegetables, for example, the bill says: “Not later than 1 year after the date of enactment…[FDA] shall publish a notice of proposed rulemaking to establish science-based minimum standards for the safe production and harvesting of those types of fruits and vegetables that are raw agriculture commodities for which [FDA] has determined that such standards minimize the risk of serious adverse health consequences or death.”

I think Teddy would have just said the safest way to grow fruits and vegetables is to plant them in nice clean soil, water them, and pick them when they’re ripe.

The Senate bill goes on to say that FDA must consider “growing, harvesting, sorting, packing” storing, soil standards, temperature control, animal encroachment, water issues, “hazards that occur naturally,” hazards that may be “unintentionally introduced,” hazards that may be “intentionally introduced” including terrorism, natural resource conservation, and wildlife conservation, among other things. And the final rules, which we won’t see for another 2 years, must contain procedures “reasonably necessary to prevent the introduction of known or reasonably foreseeable biological, chemical, and physical hazards, including hazards that occur naturally, may be unintentionally introduced, or may be intentionally introduced, including by acts of terrorism, into fruits and vegetables that are raw agricultural commodities…”

It’s all too much. Why can’t we just have one law that says you can’t grow your fresh fruits and vegetables in a cess pool and that you can’t sell food that contains: (i) feces; (ii) bombs; (iii) decomposing animals; (iv) other rotten things; or (v) unhealthy things. And the latter would be determined by doctors, not politicians, bureaucrats, or cattle farmers.

Kim Egan is Partner in the firm DLA Piper LLP

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Comments

  1. Tamar June says:

    There’s an update this morning regarding the Senate bill that was passed yesterday. According to Roll Call, “House May Block Food Safety Bill Over Senate Error” – see link here for full story:

    http://www.rollcall.com/news/-201012-1.html

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