/Why President Obama and Congress turned their backs on food safety

Why President Obama and Congress turned their backs on food safety

The bacteria-tainted apple that probably killed Shirlee Frey traveled hundreds of miles from an orchard to a packinghouse and then to a factory that coated it in caramel. It never came anywhere close to being examined or tested by a food-safety inspector.

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The California woman died in December, about a month after she ate some of the Halloween treats she bought for her grandchildren. At the end, her brain was so swollen she couldn’t breathe on her own. Frey, 81, was one of seven fatalities in a listeria outbreak caused by caramel apples that spread to 12 states. Common bacteria such as listeria, salmonella and E. coli kill several thousand people each year and sicken some 48 million Americans. Brad Frey believes his mother and hundreds of others might still be alive if a sweeping law hailed as a complete revamp of the nation’s broken food-safety system had been put into action.

“This didn’t have to happen,” Frey said.

He may well be right.

According to a POLITICO investigation, the Obama administration and Congress have all but squandered an opportunity to give the anemic Food and Drug Administration, which is responsible for the safety of 80 percent of the nation’s food supply, a level of oversight the public long assumed it already had.

On paper, the law that Congress passed in late 2010 — known as the Food Safety Modernization Act — was bigger than anything since Teddy Roosevelt cleaned up the meatpacking industry. The law mandated more inspections and much tougher anti-contamination standards for everything from peaches to imported pesto sauce, and it placed more emphasis on preventing outbreaks than on chasing them down after people become sick.

But almost five years later, not one of the sweeping new rules has been implemented and funding is more than $276 million behind where it needs to be. A law that could have been legacy-defining for President Barack Obama instead represents a startling example of a broad and bipartisan policy initiative stymied by politics and the neglect of some of its strongest proponents.

The breakdown of food-safety reform is also a reminder of how quickly momentum can be lost without leadership. The White House has routinely put nutrition policy ahead of food safety, sat on key regulations for months and made only halfhearted attempts to fund the law, according to dozens of interviews with current and former government officials, industry leaders and consumer advocates. Congress, too, bears blame: With no real pressure from the White House or the public, Capitol Hill has given the FDA less than half of what the agency says it needs to actually enforce the new rules, once they take effect. And many of the industry lobbyists and advocates who once championed the measure have turned their attention to other, more pressing policy battles.

In the meantime, deadly outbreaks like the one that killed Shirlee Frey, and another earlier this year that resulted in the recall of Blue Bell Creameries’ entire ice cream inventory, keep happening. Since Obama signed the new law, outbreaks involving cantaloupes, salad greens, pomegranate seeds, sushi tuna and cilantro — to name a few of the more publicized incidents — have sickened thousands and killed several dozen people. And the threat posed by an increasingly exotic food system keeps growing: Two decades ago, the FDA oversaw 200,000 imports; last year there were 12 million, accounting for roughly 15 percent of the nation’s food supply.

Obama’s new budget calls for $109 million increase to implement the law next year. It’s a sudden reawakening of White House interest, more than four times what the administration requested last year, but still far short of what is needed to make the law work as intended, according to the Congressional Budget Office. Besides, Congress, dominated by Republicans focused on squeezing federal budgets, is not likely even to grant that much.

“You can’t do a new job without new resources,” said Michael Taylor, the FDA’s deputy commissioner for foods and veterinary medicine.

“At this juncture,” he added, “FSMA either succeeds … or it falls off the rails.”


The American food-safety system was born out of crisis. At the turn of the 20th century, Harvey Washington Wiley, an intrepid government chemist, and Upton Sinclair, author of “The Jungle,” horrified the nation by uncovering widespread food fraud and grotesque conditions in Chicago meat plants. Congress responded by passing the first major safety laws: the 1906 Pure Food and Drug Act and Federal Meat Inspection Act.

In the years since, oversight of food has unfolded in a piecemeal and reactive fashion: President Franklin D. Roosevelt signed the Food, Drug, and Cosmetic Act in 1938 after 100 people died from a toxic quack medicine for strep throat. President Richard M. Nixon ordered a sweeping review of food additives when it was believed that saccharine caused cancer. President Bill Clinton cracked down on E. coli in meat after four children died from undercooked fast-food hamburgers. President George W. Bush mandated that food facilities register with the government in the wake of 9/11.

The patchwork response has created a regulatory monstrosity of a dozen poorly coordinated federal agencies that give the illusion of comprehensive coverage but in reality are woefully inadequate to the task of protecting the nation’s food supply. The Department of Agriculture oversees meat and poultry, and the FDA oversees just about everything else. But the lines of jurisdiction have been mocked for decades — cheese pizza falls under the FDA’s purview, but not pepperoni pizza. The same divide holds true for soups, sauces and other processed foods — if it has meat, it falls to the USDA – except for eggs. Eggs are regulated by the FDA, unless the egg is cracked and processed — then it’s the USDA’s job. Since 2007, the Government Accountability Office has rated the food-safety system one of the areas most in need of reform for being fragmented and ineffective, right up there with homeland security and the government’s patchy cyberdefense.

Obama’s food crisis was waiting for him as he took office in 2009: an unfolding salmonella outbreak that ultimately killed nine and sickened 714 across 46 states. The source was a filthy factory in Georgia that made peanut butter for everything from Clif bars to Keebler crackers. Thousands of products were recalled as hundreds of children fell ill, riveting the nation’s — and Congress’ — attention.

At a 2009 oversight hearing on the outbreak, Rep. Diana DeGette (D-Colo.) was exasperated. Congress had held hearing after hearing on food safety, she said, but hadn’t passed meaningful reform. “How many sick kids does it really take for us to finally act?”

Obama’s tone was equally as urgent when he appeared on the “Today” show and spoke about the government’s obligations to ensure food safety. “At a bare minimum, we should be able to count on our government keeping our kids safe when they eat peanut butter,” he said, referring to his youngest daughter: “That’s what Sasha eats for lunch.”

But the part of the government responsible for keeping kids’ peanut butter safe was a chronically understaffed unit of the FDA called the Office of Regulatory Affairs.

In 2009, ORA had fewer than 700 food inspectors (calculated in full-time employees) to cover hundreds of thousands of food facilities. By comparison, at the Department of Agriculture, which oversees all meat processing, the ratio is flipped: There’s more than one inspector for every one of the 6,200 facilities, and they’re on site around the clock. That level of scrutiny is a vestige of Teddy Roosevelt’s reforms: Meat companies by law aren’t allowed to operate without an inspector on hand. The FDA has had no similar mandate, so its workforce never kept pace.

For decades, the ORA’s inspection force has been dwarfed by the number of companies the agency oversees. And as the food system has become increasingly globalized, the gap between the FDA’s capacity and its vast jurisdiction has grown exponentially. U.S. food companies might get inspected every four to five years, and the overwhelming majority of foreign producers never get inspected at all. The ORA now has about 1,100 food-safety inspectors — a seemingly large increase since 2009 but still a tiny force compared with the 377,000 domestic and foreign facilities it is nominally in charge of monitoring.

The FDA’s foods program also has significantly lagged in funding over the years. In the 1970s, close to half the agency’s budget was spent on food safety and nutrition. Today, it’s closer to one-fifth. Spending on drugs and medical device programs has boomed — a trend fueled largely by industry user fees. Drug and device companies have an economic incentive to keep FDA well-staffed to speed product approvals, but there is no such incentive for food-safety inspections.

The consequence of ORA’s understaffing was on full display in the 2009 peanut butter disaster. At the time of the outbreak, federal officials hadn’t inspected the Peanut Corporation of America’s Blakely, Georgia, plant since 2001, years before the company had started making peanut butter. State inspectors, under contract with the FDA, had visited the plant in 2007 and 2008 and found numerous sanitation problems that the company committed to correcting. But no tests for salmonella were done.

Food-safety experts recognize that there will never be enough resources, or FDA inspectors, to have the same level of coverage that the USDA has over meat plants, but food-safety inspections are seen as critical to ensuring that food companies are actually following the new food safety rules. ORA declined interview requests about staffing levels and the food-safety law, citing the fact that the final regulations have not been issued.

“You could double the workforce and it would not cover the industry all that well, either,” said a former FDA official. Even if the agency could multiply its inspection force so it could pop into a food facility twice a year, it would still just be “a spot check” because that plant might be operating three shifts a day, 365 days a year. Nevertheless, the official said, “The spot checks are still important,” just like “it’s important for a cop car to sit on the side of the road to deter speeding.”

When federal investigators finally set foot in the Georgia peanut butter plant in 2009 — four months after people began getting sick — they discovered evidence of roaches and a leaky roof that, a company employee later said, had allowed bird feces to drop into the plant. Officials also discovered that the company had been testing its products for salmonella, but it had disregarded positive results and shipped products anyway.

Few members of Congress expressed as much anger over the incident as Rep. Greg Walden (R-Ore.), who had several constituents fall ill during the outbreak. During one hearing, he dared Stewart Parnell, PCA’s chief executive, to eat recalled products he had brought in a large jar wrapped in yellow caution tape. Parnell declined (and refused to testify, invoking his right against self-incrimination.)

That bipartisan outrage was sustained by a powerful alliance of consumer groups and the much deeper-pocketed food industry, which had become increasingly anxious about eroding consumer confidence and the staggering costs to businesses. Given the historic lack of a powerful constituency pushing for stronger oversight of the nation’s food supply, the breadth of the coalition was unique and effective.

“This legislation means that parents who tell their kids to eat their spinach can be assured it won’t make them sick,” declared Sen. Tom Harkin in December 2010. The Iowa Democrat had worked closely with Sen. Mike Enzi, a Wyoming Republican, to bring the law to the finish line. The Senate cleared the bill 73-25.


The January 2011 signing ceremony for the landmark Food Safety Modernization Act should have been the first clue something was amiss.

There wasn’t one. No kids. No media photo ops. The president signed the bill alone.

The Democrats, and therefore the White House, had just endured a thrashing in the 2010 midterm elections and food safety was not a priority.

Despite the lack of fanfare, the White House appeared committed to funding the new law. The Congressional Budget Office had estimated that the FDA would need $583 million added to its less than $4 billion base over five years — or an increase of roughly $116 million each year — to boost the agency’s capacity to prevent outbreaks. The administration’s fiscal 2012 request for a $183 million increase far exceeded that — a big ask considering the House had flipped to conservative control. Congress ultimately gave the FDA a $46 million bump, just less than 40 percent of what CBO said was needed.

The following year, the administration capitulated, seeking a minuscule $6 million increase and relied instead on the idea that new industry fees could fund the difference. The White House proposed more than $240 million in fees that year, a politically toxic and unrealistic approach that drew scorn from industry groups, which argued that registration and inspection fees would be an unfair tax on food. Congress granted FDA a $37 million increase that year.

It was the beginning of a worrisome trend. Each year, the White House asked Congress for far less than what FDA needed and Congress more or less agreed. All the while, the administration continued to float the unpalatable idea of industry fees. In 2015, the White House asked for such a small increase ($24 million) that Congress again exceeded the president’s request by several million dollars.

The funding for the new law was way behind, but so were the new rules that were at the heart of the reform.

As soon as Obama signed the law, the clock started ticking to get the four biggest rules out within the year. By the end of 2011, the FDA had drafted a rule requiring food makers to limit potential hazards, whether through better cleaning or simply keeping rodents out. The agency drew up a similar rule to keep contamination from spreading in animal feed and pet food. FDA also drafted tough new rules for food importers and produce growers.

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