Fairfield University professor Debra M. Strauss says nation's pending landmark food safety law represents a mandate



It will strengthen food law by enlarging powers of the FDA to inspect plants and order recalls

Image: Debra StraussThe U.S. House of Representatives and the Senate approved a bill that will overhaul the nation's food safety laws for the first time since the Great Depression. President Obama has indicated that he will sign the bill into law.

Debra M. Strauss, J.D., associate professor of business law at Fairfield University, explained that the legislation establishes a food tracing system through which consumers can be rapidly identified and deaths and illnesses minimized in the event of a contamination outbreak. It will allow the FDA to require importers to certify the safety of their foods before entering the U.S. food supply.

The new measure is about prevention of illness and places the FDA in a proactive position. It will give the United States government far-reaching authority to establish food safety standards for farmers and food processors, and gives the FDA the authority to recall food. The current food safety policy depends on government inspectors discovering contamination. Also, in outbreaks of contamination, the FDA has in the past had to count on food companies to voluntarily remove their products from stores.

"After a difficult journey through technical and procedural hurdles, this food safety legislation has now passed, on the way to strengthening the powers of the FDA for inspections and recalling of tainted foods," said Strauss, a faculty member of the Dolan School of Business. Her research has been pressing for modifications in food law, noting while the law in this area has not been altered, biotechnology has transformed the nature - and arguably the safety - of crops and food products exponentially.

Strauss offers her views on this important legislation:

"With bipartisan support from both houses of Congress and the President, this new legislation represents a mandate that food safety is at this moment becoming a priority," Strauss said. "Accordingly, the time is ripe for a reassessment of other areas of food laws to make meaningful change in the food safety standards regarding biotechnology, particularly genetically modified foods and the use of milk and meat from cloned animals and their progeny. These areas need particular attention because these foods are entering the U.S. market without labeling and monitoring, unlike our counterparts overseas, resulting in agricultural trade problems and questions for consumers of the safety of the United States - and ultimately global - food supply."

"Prompted by the increased incidents of tainted foods in recent years, the FDA Food Safety Modernization Act (S. 510, H.R. 2751), will strengthen food law by enlarging powers of the FDA to inspect plants and order recalls, powers and abilities it does not currently have, and as such signals a new shift in policy from reactive to proactive," Strauss commented. "It also increases funding for the FDA, although this component caused difficulties for the Senate version of the bill, temporarily derailing its progress as it was sent back to originate in the House of Representatives, which is the Constitutionally appropriate body to handle monetary appropriations."

Strauss said that a stronger version of this legislation had passed in the House previously but did not gain approval in the Senate. Even so, the Senate version that is now becoming law contains many constructive components, she noted. "In addition to inspection and recall powers for the FDA, it requires food producers to develop food safety plans, including identifying potential risks of contamination or other hazards, and identifying the mechanisms through which those risks would be controlled," Strauss said. "The legislation establishes a food tracing system through which consumers can be rapidly identified and deaths and illnesses minimized in the event of a contamination outbreak. Strengthening restrictions on imported foods, the FDA will be empowered to deny entry to foods that do not comply with U.S. food safety requirements or requests for inspections."

Strauss pointed out that this is the first time in 70 years that food law has been changed significantly.

"It is also significant to note that the Senate bill received widespread support from the U.S. Chamber of Commerce and trade groups of food producers and grocery stores, who have realized that food safety is ultimately in their best interest," she continued. "However, small farmers opposed this legislation fearing the increased costs and paperwork of regulation. Concessions were made to accommodate their interests, including exemptions from FDA registration requirements for farms that market more than 50 percent of their product directly from the farm or from farm stands or farmer's markets, as well as less costly alternatives to HACCP (Hazard Analysis and Critical Control Plans) and a competitive grant program for food safety training with priority to small and mid-sized farms."

Strauss noted, "As stated by the National Sustainable Agriculture Coalition, '[a]s a result of grassroots mobilization and much negotiation this bill now provides scale-appropriate food safety rules for small farms and mid-sized farms and local processors that sell to restaurants, food coops, groceries, wholesalers and at farm stands and farmers markets.' "

"But the new law does not deal with meat safety, which is in the purview of the U.S. Department of Agriculture," she emphasized. "The scope and powers of the USDA were not addressed in this legislation."

Strauss went on to say that now that the importance of food safety is being widely recognized at last, perhaps changes are on the horizon to be proposed and enacted in these other areas. Dr. Strauss intends to continue her research to this end in the hopes of seizing this precious opportunity to make further strides towards securing the safety of our food supply through improvements in the law.

A former Food and Drug Law Institute Scholar, Strauss's research on the legal issues associated with the regulation of genetically modified organisms has been published in the Food and Drug Law Journal, The International Lawyer, Journal of Food Law & Policy, Stanford Journal of International Law, Journal of Legal Studies in Business, and American Business Law Journal. A Phi Beta Kappa graduate of Cornell University and Yale Law School, she is a member of the International Law and Ethics Sections of the Academy of Legal Studies in Business, the Connecticut Bar Association, the Federal Bar Council, and the Biotechnology in Agriculture Group of the Yale University Interdisciplinary Center for Bioethics.

For more information, contact Debra Strauss at (203) 581-3262 or DStrauss@fairfield.edu.

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Media Contact: Meg McCaffrey, (203) 254-4000, ext. 2726, mmccaffrey@fairfield.edu

Posted on December 22, 2010

Vol. 43, No. 158