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CU letter to Senator Durbin regarding FDA Food Safety Modernization Act

March 2, 2009
Honorable Richard J. Durbin
Assistant Senate Majority Leader
309 Hart Senate Office Building
Washington, D.C. 20510
Dear Senator Durbin:
Consumers Union, the non-profit publisher of Consumer Reports, commends your continued leadership to reform of our broken food safety system. Your bill, the “FDA Food Safety Modernization Act of 2009,” which you will be introducing with Senators Kennedy, Dodd, Klobuchar, Alexander, Gregg, Burr, and Chambliss, represents significant progress towards reforming the beleaguered Food and Drug Administration (FDA).
The U.S. food safety system has been in trouble for a long time; the most recent examples of its failings in the food safety arena are the current outbreak of salmonella in peanut butter, which has killed 9 and sickened more than 600, and last summer’s outbreak of salmonella in peppers. Sadly, there are many other examples that demonstrate that the FDA – the agency that is supposed to oversee the safety of an enormous array of foods that consumers bring into their homes every day, from peanut butter to pet food – is currently not able to adequately protect Americans.
Many in the consumer community have been sounding the alarm on the need for new food safety protections for a long time. However, the latest outbreak – the second in 2 years – of salmonella in a ubiquitous and seemingly “low-risk” food such as peanut butter has only heightened the need for prompt action to give the FDA the authorities and resources it needs to protect consumers. Your bill would make a number of much-needed improvements at the FDA, and help begin to restore consumer confidence in the safety of our nation’s food supply.
Among its reforms, your bill:
• Recognizes the need to prevent foodborne illnesses before they happen by requiring hazard analysis and risk-based preventative control plans. Your bill requires domestic food facilities to identify food safety dangers and to develop a written plan to minimize or prevent hazards. It is an important first step to a safer food supply system and could help avert dangerous hazardous food outbreaks and recalls.
• Gives the FDA mandatory recall authority to remove unsafe and dangerous products from the stream of commerce. Many consumers are shocked to find out that FDA does not already have the ability to order the recall of a food if a company has failed to voluntarily recall the product on its own, if the food will cause serious adverse health consequences or death. By giving the agency this critical authority, your bill will help to put FDA back in the driver’s seat on consumer safety.
• Addresses the unique safety problems associated with produce. Your bill also directs FDA to place its standard-setting focus on a category of food – produce – and on those contaminants that are most often involved in foodborne illness outbreaks. This direction will finally ensure the agency is going after the problems we have seen arise time and time again.
• Recognizes the importance of tracing problem food products back to their source. However, your proposal to create a traceback pilot program should be strengthened by creating an operative traceability program at FDA now., Industry has already made significant strides in this area, and the technology exists to begin requiring traceback now. We strongly encourage you to require FDA to establish a comprehensive traceback program now that includes electronic recordkeeping.
As the bill proceeds through the legislative process, we urge you to consider taking additional, critical steps that would greatly enhance our food safety system. Chief among them is the need to increase the frequency of inspections of food producing facilities. Your bill would require inspections of plants making non-high-risk food once every four years at a minimum. By way of comparison, the Department of Agriculture (USDA) is required to inspect certain meat processing plants on a daily basis. We strongly believe that, at a minimum, annual inspections are necessary to prevent problems such as the Peanut Corporation of America tragedy from happening again. Peanut butter is still considered to be a low-risk food. However, an inspection of the Peanut Corporation of America (PCA) plant in Georgia four years ago – in 2005 – would not have caught the deadly problems that appeared at the plant in 2007 and 2008.
A requirement in the bill mandating both the testing for contaminants such as salmonella, and mandating the disclosure to FDA of positive test results, can also help ensure that we never have another PCA-type situation.
We recommend that FDA reform legislation consolidate and reorganize the food safety functions of the agency into one office – rather than the four FDA offices within which it is currently placed – in order to increase the agency’s accountability both to Congress and to consumers. The assessment and collection of fees from domestic and foreign food plants would also supplement appropriated funds, and the fees could fund routine, up-front inspection work. Finally, FDA needs the authority to enforce meaningful penalties to deter behavior like PCA’s. The maximum penalties for such wrongdoing should be increased from the current cap of $10,000 to $1 million.
Again, we thank you for your leadership on this issue, and look forward to working with you to help enact strong FDA reform legislation.
Jean Halloran
Director, Food Policy Initiatives
Consumers Union
101 Truman Avenue
Yonkers, NY 10703
Ami V. Gadhia
Policy Counsel
Consumers Union
1101 17th Street NW, Suite 500
Washington, DC 20036