Peter Barton Hutt

In the past, Americans were able proudly to state that the United States has the safest food supply in the world. The food regulation functions of our Food and Drug Administration were once regarded as the gold standard for other countries to emulate. Sadly, neither of these is any longer true.

Congress has placed such a low priority on appropriations for FDA food regulation during the past 20 years that these functions have shrunk to half their former size and stature. FDA is now reduced to ineffective scrambling to contain one food safety crisis after another—pathogens in spinach, lettuce, and peanut butter, antibiotics in fish, and now botulism in canned food, to name only a few in the past year alone.

Let’s compare appropriations for FDA and for its Center for Food Safety and Applied Nutrition (CFSAN) in 1992 with those in 2007. FDA had a reduction of 1,128 appropriated people, from 8,984 to 7,856, during those 15 years. Its funding increased from $762 million to $1.574 billion, but this was not even enough to keep up with FDA’s fully burdened inflation factor of 5.8%, compounded annually.

Compare this to the National Institutes of Health, which had a $20.009 billion increase, and to the Centers for Disease Control and Prevention, which had a $4.640 billion increase, during this same time.

CFSAN itself suffered a reduction in force from 957 to 812, or 15% of its staff. Its increase in funds from $85.362 million to $159.114 million was, like for FDA, inadequate even to keep up with inflation. At the same time, the number of FDA field personnel allocated to food regulation also dropped, from 1,922 to 1,896.

And this does not even take into consideration the extra $415 million that the drug and device centers of FDA received in 2007 as a result of user fees, over and above the congressional appropriations. These user fees, which resulted in 1,750 new employees for the drug and device centers, amounted to 2.6 times the 2007 level of the appropriations for CFSAN.

During this period, Congress enacted new legislation creating large new responsibilities for CFSAN, none of which included even a penny of funding for implementation. CFSAN was expected to implement the Nutrition Labeling and Education Act of 1990, the Dietary Supplement Health and Education Act of 1994, the FDA Modernization Act of 1997, the Bioterrorism Act of 2002, the Food Allergen Labeling Act of 2004, the Sanitary Food Transportation Act of 2005, and the Dietary Supplement Adverse Event Reporting Act of 2006—to name just a few of the important unfunded food statutes enacted and implemented during this period—while facing a 15% reduction in personnel.

To add insult to injury, President Bush has recently established a working group to solve all of our food safety import problems "within existing resources." Congress is holding hearings to blame FDA for inaction, and the congressional appropriations for 2008 are once again not even likely to keep up with inflation.

The President has proposed to reduce the appropriations for CFSAN by another $5 million to $154 million and to cut another 30 CFSAN staff positions, when it would take an appropriation of at least $199 million (because of inflation) and 146 new employees just to return CFSAN to the level that it enjoyed in 1992. And even that would leave CFSAN with no new personnel or money to implement the statutes enacted since 1992.

IFT, food professionals, and the food industry have sat on the sidelines while this destruction of one of our most important public health agencies has proceeded unabated during both Democratic and Republican Administrations. It is time for the entire food establishment to rise up, publicize the devastating consequences of the disintegration of CFSAN, and demand that adequate appropriations be restored. Grassroots lobbying is by far the most effective way to educate Congress and obtain action. IFT has members in every congressional district, and food retailers reach the public every day of the week.

We should learn from the dietary supplement industry and its successful grassroots approach in 1994. In that year, every dietary supplement store in the country had signs demanding that Congress take action to assure freedom of choice in the marketing of their products. More letters were written to members of the House and Senate that year on dietary supplements than on any other subject of any kind. Congress was forced to respond with the enactment of legislation—the Dietary Supplement Health and Education Act of 1994.

Certainly, food professionals, restaurants, food manufacturers, and retail food stores can have an even larger impact. The food industry today contributes more than $1.2 trillion to the gross domestic product. If we all unite in a crusade to save FDA food regulation, we can surely succeed. 

by Peter Barton Hutt, a Professional Member of IFT and Lecturer on Food and Drug Law at Harvard Law School, is Senior Counsel, Covington & Burling LLP, 1201 Pennsylvania Ave., N.W., Washington, DC 20004 ( [email protected] ).