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New Law Gives FDA Tools to Fight Food Contamination

This year, one out of every six Americans will get a food borne illness or disease. While many of those who become sick from eating contaminated food will suffer flu-like symptoms, others will become much sicker. According to the Centers for Disease Control (CDC), of the estimated 48 million people who will become ill, more than 100,000 will require hospitalization and as many as 5,000 will die.

In an effort to reduce the frequency of food borne illnesses, an important new law was signed by the President this past January. Under the Food Safety Modernization Act (FSMA), the FDA has been given new authority to oversee the facilities that grow and sell the nation's produce, including the power to issue mandatory food recalls.

Pressure was put on Congress to pass a food safety bill in light of several high profile cases of food borne illnesses, including the recall last summer of more than 380 million eggs traced back to two Iowa farms. More than 1,600 people became sick from salmonella poisoning after consuming the contaminated eggs. In addition to the egg recall, there also have been other massive recalls in recent years of spinach for E.coli contamination and peanut butter for salmonella.

The Food Safety Modernization Act

The FSMA greatly expands the scope of the FDA's role in preventing the outbreak of food borne illnesses. Key components of the new law include:

  • Mandatory recalls: under the law, the FDA now has the power to issue mandatory food recalls in cases of suspected outbreak. The FDA had the authority to issue only voluntary recalls, prior to the new law, except in cases of contaminated infant formula.
  • National food safety standards: the new law also directs the FDA to create national food safety standards for growing, harvesting and transporting produce. This is the first time that a universal standard will be created. Previously, there was a patchwork of standards varying by state and grower.
  • Electronic food tracking system: facilities that grow and sell produce now must keep track of where their products go through an electronic tracking system. The system is meant to help the FDA and other public health officials more quickly identify where potentially contaminated food has been shipped and isolate which foods need to be recalled.
  • Facilities must take charge of preventing outbreaks: the new law requires food manufacturing and processing facilities to take pre-emptive action to prevent contamination, including creating written safety plans that identify both potential contamination risks and steps taken to prevent contamination.
  • More on-site inspections: the FSMA increases the frequency of FDA on-site facility inspections. Previously, it was one inspection in every five to 10 years. Now, it's one inspection every three years.
  • FDA oversight of food imports: prior to the passage of the law, the FDA had little to no authority over produce imported into the U.S. from other countries. (Currently, imported fruits and vegetables account for 60 percent of the fresh produce sold in the U.S.) The FSMA gives the FDA authority to require foreign foods to meet the same safety standards as produce grown in the U.S. The FDA can also conduct on-site inspections of overseas facilities that export to the U.S. and block foods from entering the country that come from facilities that refuse to allow these inspections to take place.

Strength of Law Uncertain

While many agree that the FSMA is a step in the right direction for preventing food borne illnesses, some question the ability of the new law to have much of an overall impact on food safety. There are several criticisms of the new law, including the lack of funding to hire more FDA inspectors. While Congress saw fit to pass the FSMA, it did not increase the FDA's budget to help the agency carry out its new mandates under the law. Without more inspectors, it seems unlikely that the FDA will have the capabilities to conduct frequent on-site inspections.

Other critics point out that even if inspections are conducted every three years instead of once every decade, the inspections still will not happen frequently enough to change the daily operations of plants. These critics argue that to prevent food borne illness and disease, the change much be made from the bottom up within the food facilities rather than from the top down through federal regulation. For example, if producers required those who handle food to wash their hands and enforced the rule, this could help eliminate some types of contamination. However, this is not something that can effectively be legislated by Congress; it needs to happen inside each facility.

Food Poisoning and Your Legal Options

The FSMA is an important piece of legislation. It should help reduce food borne illnesses and disease - but it will not protect all Americans from getting sick. Those who have gotten sick from salmonella, E.coli, Hepatitis A or other dangerous food borne illnesses from contaminated foods may have legal options available to them.

Restaurants, grocery stores and other entities producing and selling food have a duty to ensure that their products are safe for human consumption. When food sold does not meet this standard, food producers may be liable. For more information on your legal rights after getting sick from a food borne illness or disease, contact an experienced personal injury attorney.

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