When her then 10-month-old, Beck, contracted salmonella from a seemingly healthy puffed rice snack with spinach and kale, Chrissy Christoferson decided she would do whatever she could to prevent the ordeal from happening to other families.
The Bend resident contacted a food safety organization and asked how to help. Before she knew it, she was in Washington, D.C., telling audiences about her family’s experience and championing a bill to give the Food and Drug Administration more authority to regulate food producers.
“Until enough people make noise about an issue, nothing is changed,” she said.
Government oversight of food safety has come a long way since. In 2011 — two years after a nationwide salmonella outbreak from peanut butter was linked to nine deaths and more than 700 illnesses — Congress passed the Food Safety Modernization Act, which was hailed as the most sweeping update to the country’s food safety laws in at least seven decades.
Among other things, the new law — the one Christoferson urged lawmakers to pass — gave the FDA authority to mandate recalls and increased the frequency of food facility inspections.
Now, Congress is considering another measure, the Regulatory Accountability Act, which supporters say will ensure new federal regulations are properly vetted for their cost effectiveness and scientific efficacy.
But critics, including a number of consumer advocacy and food safety groups, argue it will slow or even stop federal agencies from creating new rules to protect the public from unsafe foods and products.
Sarah Sorscher, chief regulatory affairs counsel for the Washington, D.C.,-based consumer advocacy group Center for Science in the Public Interest, said flatly that the proposal, while billed as a tool to increase flexibility in government, will actually paralyze government.
“It will stop the government from acting,” she said. “It will also stop the government from being responsive and amending rules that don’t make sense and responding to new public health threats.”
Enough roadblocks already
Sorscher and others argue it’s already difficult for agencies to put rules into place.
It took the FDA nearly five years, for example, to announce its rules for implementing the Food Safety Modernization Act, said Thomas McGarity, a law professor at the University of Texas at Austin and board member with the Center for Progressive Reform. That’s because over the years, courts and presidents have added to requirements agencies like the FDA must meet when writing rules.
“It’s just really hard to write regulations now,” he said.
For example, agencies currently must submit analyses of proposed rules’ cost effectiveness to the Office of Management and Budget for approval, an agency that tends to be a skeptic of regulation, he said.
The proposal would require agencies to create publicly accessible electronic dockets where they would post all the research and other information used to create the rule. Agencies would have to allow between 60 days and as many as 120 days, in the House version, for public comment. The Senate version would require agencies to respond to each “significant” issue raised in submitted comments.
The proposal would also allow anyone to request a public hearing when it comes to very expensive proposed rules.
Agencies could still deny hearings — so long as the rule in question did not have an economic impact of $1 billion — if doing so would unreasonably delay the rule’s implementation.
For her part, Sorscher said she doesn’t believe agencies would actually be able to deny hearings, as the standards for denial are vague and easily challenged in court.
The proposal would also direct agencies to prioritize the most cost-effective rules that meet the relevant goals.
Companies can intervene
McGarity said he agrees it’s important to post scientific studies online for the sake of transparency; that does not take much time nor money.
Rather, he and other opponents say the proposal would open up more opportunities for affected industries to delay or even stop the regulatory process.
“The companies that are affected hire consultants and pay them a lot of money to nitpick every little thing they can possibly find wrong,” McGarity said.
The public hearings would play out more like full-on trials, McGarity said. He was involved in such an event to stop the use of a type of pesticide and said it required three months of trial time.
“We don’t have a trial about legislation when we enact it when Congress promulgates rules,” he said. “We don’t have a trial about it with witnesses and cross examination and that sort of thing. But for these big rules under the Regulatory Accountability Act, we’re now going to have a trial.”
The pro-business lobbying group the U.S. Chamber of Commerce supports the bill. Staff there did not return requests for comment, but the group wrote in a statement that federal agencies often put out expensive rules without considering all relevant facts, usually because Congress passes overly broad legislation.
A partisan issue
The House of Representatives passed its version of the proposal in January. The votes fell mostly along party lines; 233 Republicans voted in favor and zero against and five Democrats voted in favor and 183 against. The Senate version is in committee.
Oregon Rep. Greg Walden, R-Hood River, voted in favor. A spokesman in Walden’s office said Walden has a long history of ensuring families have safe food.
“As Chairman of the House Energy and Commerce Committee, he will maintain that commitment and will continue to ensure Americans’ food is safe and bad actors are held to account,” Walden spokesman Justin Discigil wrote in an email. “The Regulatory Accountability Act aims to streamline and improve the regulations that guide the FDA’s food safety rule making.”
Walden was a strong champion of the Food Safety Modernization Act. He said in a House floor speech at the time it likely would have prevented the deadly peanut butter salmonella outbreak in 2009 had it been in place.
Representatives with the offices of Oregon Senators Ron Wyden and Jeff Merkley, both Democrats, did not return requests for comment.
While McGarity said most of the Food Safety Modernization Act’s rules are already in place, the proposal would slow the implementation of those that are not. It would also make it more difficult to modify rules to prevent foodborne illness in the future.
“There will need to be changes to fill in gaps that we’ve left or to react to unanticipated circumstances,” he said, “and having that RAA in place, it’s just going to make it harder to do that.”
The consumer advocacy group CSPI compiled a list of food safety rules that could be imperiled if the proposal becomes law. For example, CSPI is pushing the federal government to test meat and poultry for four strains of salmonella and remove contaminated products from the food supply. The group wrote that the proposal would force the government to weigh future deaths and illnesses against the costs to industry.
“Particularly with food safety, there may be cases where under this cold, hard financial calculus, it’s worth it to let four toddlers die in an outbreak so that you won’t have to cost the beef industry money in testing their meat,” Sorscher said.
Cost effective vs. safe
Meanwhile, families in Bend anxiously watch the debate.
Among them is Sarah Valenzuela, whose then-3-year-old son, Jet, nearly died after contracting E. coli from an unknown source. It began with bloody diarrhea and morphed into kidney failure and heart problems. Jet had to be put into a medically induced coma and afterward relearned to walk and talk. He’s 12 years old and fully recovered.
Like Christoferson, Valenzuela urged lawmakers to pass the Food Safety Modernization Act. Now, she’s worried this new proposal could roll back that progress.
“To actually deregulate more of the regulations put out, the possibility of that happening just seems really scary to me,”she said.
Christoferson was back in D.C. a few weeks ago to voice her opposition to the proposal. She spoke at an event hosted by the consumer advocacy group Consumer Federation of America, which joined a consortium of organizations that oppose the measure, including CSPI, Consumers Union, the Environmental Working Group and Food & Water Watch.
One of her biggest problems with the proposal is its emphasis on cost.
“Of course, we don’t want things to cost more, but if you choose the most cost effective way to do something, that may not be the safest,” she said. “If I have to pay an extra $2, great. Where do I write my check to?”