The Food Safety Paradox

As Tom McGarity documents in his recent book, Freedom to Harm, the American food safety system is in disarray.  You’d think we’d all be wiped out by food poisoning.  Yet, the rate of sickness caused by bad food seems to have remained constant since the mid-nineties.  What’s going on?

McGarity and others are right about the state of the regulatory system. Food safety is divided between the Food and Drug Administration (FDA) and the United States Department of Agriculture (for meats and poultry). The USDA maintains an inspector at every slaughterhouse and poultry processing plant. But the number of inspectors per billion pounds of meat has fallen by half. USDA’s ability to monitor imports is even more limited. The FDA story is similar. In terms of imports, FDA checked less than 1% of shipments and tested only a small fraction of those for pathogens. Overall, whereas FDA inspected about half of the country’s food manufacturing facilities every year in the late 1970s, by 2008 it inspected only about 5% of them.

So why aren’t we all deathly ill?  No doubt, over time, federal regulatory have gotten more skilled and able to focus their resources where they do the most good.  And there are back-up food regulators, who may help fill the gap to some extent: state authorities in some situations, foreign authorities for imports.  But there are other factors that help keep food poisoning under control.  First, there is strict liability against the producer, wholesaler, and retailer of contaminated foods. That creates a strong incentive for care.  Thus, the much maligned plaintiffs’ bar deserves some of the credit. Second, a lot of food moves through big firms like Wal-Mart, which have both the resources and the incentive to monitor their suppliers.  And third, there are marketing pressures to maintain food quality, all the stronger in an era of social media.

The fact that the rate of food poisoning has stayed constant doesn’t mean that the current regulatory situation is acceptable.  In most industries, quality control is much better than it used to be.  Look at the low rate of defects in cars compared to an earlier era. Our culture in general has gotten much more safety conscious. The failure of food contamination to follow the same path suggests that there is definite room for improvement.

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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