Examining the Fate of Federal Regulations on Food Safety Laws

The Trump Administration seems determined to reduce federal regulations on business. Will that goal impact the Food Safety Modernization Act (FSMA) and other regulations governing the nation’s food supply?

Right now, the outlook is uncertain. But there are some things we do know. Here’s a rundown of the current situation:

• The seldom-used Congressional Review Act of 1996 has been resurrected by the Republican majority in the House of Representatives to evaluate executive actions put in place by the outgoing Obama White House in the closing two months of his incumbency. Although there are no significant FDA rules that fall under that timeframe, recent rules issued by the US Department of Agriculture are impacted, such as the Agricultural Marketing Service’s recent rule on livestock and poultry practices under the National Organic Program;
• As of this writing, the post of FDA Commissioner has not been filled. Speculation has centered on candidates who are experienced in drug and pharmacy rules, not food safety. Confirmation of whomever is nominated will take months because the position requires Senate confirmation. Without a top executive running the FDA, it is highly doubtful the existing staff will do anything more than routine business;
• For the moment, FSMA appears to be isolated from the Trump Administration’s regulation axe. However, “for the moment” is the operative phrase. There is still a chance (albeit slight) that the landmark food safety legislation might be subject to modification or even repeal.

The possibility exists because shortly after his inauguration, the President issued a series of related executive orders dealing with what his Administration asserts are needless and burdensome government regulations. One order directs each Federal agency to appoint a Regulatory Review Officer (RRO) and a corresponding Regulatory Review Task Force (RRTF).  Their overarching assignment is to look at all existing rules and laws under that agency’s control and calculate whether the costs of regulation outweigh benefits to affected consumers and businesses;

Theoretically, an FDA review task force could look at FSMA and conclude that in its scope and detail, it meets the Administration’s criteria for repeal, replacement or modification. However, no such action can happen without first seeking input from consumers, businesses and trade associations, much like the current comment period required by Federal law. Then, if there is still an intent to modify the food safety act, Congress would have to introduce new legislation and submit the proposal into the normal legislative process of committee hearings, public input, and so on.

Bottom line: Federal laws and regulations are perennial targets of criticism by both Republicans and Democrats. Revising or repealing them, however, is no quick or easy matter. As it relates to FSMA, the Trump Administration would have to argue that preventive rules to control food contamination and illness outbreaks — the heart of the law — are not worth the costs of the regulations to consumers.

In today’s world, where expensive foodborne illness recalls are all-too-common occurrences, that would likely be a difficult hard sell.