Stuart Pape

In the United States, 2015 has brought forth several regulatory proposals in what has become a perpetual Washington, D.C. conversation: Why is there more than one federal agency responsible for food safety and what can and should be done about it?

The current conversation was kicked off at the end of January when Senator Dick Durbin (D-IL) and Congresswomen Rosa DeLauro (D-CT) introduced the “Safe Food Act of 2015,” a bill that would create a new “Food Safety Administration” (FSA) by consolidating the food safety-related functions of the Food and Drug Administration (FDA) and those of the U.S. Dept. of Agriculture (USDA) into a single agency. Notably, the bill would also give the FSA expansive new authorities, including the power to order recalls, issue subpoenas, and impose civil penalties. The bill’s list of new and expanded authorities reads like the list of provisions that did not make it into the Food Safety Modernization Act (FSMA), signed by President Obama in early 2011 after a long and arduous process.

Not to be outdone by his Congressional colleagues, President Obama included in his Fiscal Year 2016 budget (released in February) a request to Congress to give him fast-track authority to submit plans to reorganize parts of the Executive Branch (fast-track authority means the Congress has a limited time to accept or reject the reorganization plans). Notable was the proposal to consolidate food safety programs into a single agency under the Dept. of Health and Human Services. Congress is unlikely to act on either of these proposals.

These proposals aren’t going anywhere for numerous reasons. First, it is not self-evident that the benefits of reorganizing exceed the costs and are worth the risks. The purported benefits of a reorganization are better coordination, less duplication, elimination of silly jurisdictional lines (e.g., FDA regulates cheese pizza while USDA handles pepperoni pizza . . . assuming there is enough pepperoni to bring the pizza under USDA), and enhanced food safety. The costs of reorganizing will be readily apparent to anyone who has experienced a corporate merger or acquisition, where companies with substantial economic incentives to create efficiencies often struggle for years to merge personnel and computer systems, establish coherent lines of authority and responsibility, and make meaningful operational improvements.

Is a single food agency with a “division of meat and poultry” and a “division of all other foods” really an improvement?

Second, support for a massive change in the organizational structure for food safety is not very broad. Food and agriculture interests are not likely to be in favor; settled relationships and pathways to decisions will be unraveled and replaced with uncertainty. Even food safety-oriented groups are dubious, with one calling the idea of reorganizing a “disaster.”

Moreover, it is difficult to envision a rationale for a Republican Congress to give the President broad authority to reorganize the Executive Branch as he sees fit or to adopt a bill sponsored by Democrats to do something similar (along with expanding the regulatory reach and power of federal food safety regulators when many Republicans already think the food safety agencies overreach). Senior Republican aides have described the proposals as “unserious.”

There are other Congressional impediments as well. FDA started out in 1862 as the Bureau of Chemistry within USDA and did not become known as the Food and Drug Administration until 1930. In 1940, FDA was transferred from USDA to the Federal Security Agency, a predecessor to the Dept. of Health, Education, and Welfare, itself a predecessor to today’s Dept. of Health and Human Services. When FDA left USDA, Congressional appropriators for agriculture insisted that FDA appropriations remain with them as it has ever since. There is not any basis to expect those appropriators to willingly give up responsibility for FDA appropriations. The fact that agriculture retained FDA appropriations while the authorizing committees changed is often cited as a reason to reorganize, so FDA would not have to compete for funds with the other agriculture agencies and programs (including WIC and SNAP). If FDA appropriations resided with the health appropriators, FDA would then have to compete with NIH and CDC, among others. Hard to say that would be better.

Finally, the suggested reorganizations are, at best, only partial reorganizations. Proponents like to say that there are as many as 15 federal agencies involved in food safety (including USDA and FDA). Most of those other agencies—the Centers for Disease Control and Prevention, the Environmental Protection Agency, and U.S. Customs and Border Protection (part of the Dept. of Homeland Security)—would all remain with critical food safety responsibility right where they are (and properly so).

While there may be some attention paid to these reorganization proposals over the next several months, observers and interested parties should not confuse action with progress. There may well be action, but there is unlikely to be actual movement toward reorganization.

Stuart Pape leads the FDA Practice of Polsinelli. He can be reached at [email protected].