by Marion Nestle
Jun 1 2010

Thinking about food safety

Food safety is in the news again.

Congressman John Dingell (D-Mich) is calling on the Senate to get busy and pass the food safety bill that it has been sitting on for the last ten months: “I urge my Senate colleagues to acknowledge this important threat and make legislation addressing it a priority. Until the Senate acts, American families will continue to be at risk.”

If this bill ever passes it will require food companies to develop food safety plans, authorize the FDA to order recalls, and give the FDA better access to company records.

But will it do any good?

Here is one view from Dennis Stearns, counsel in the Seattle law firm, Marler & Clark, which represents victims of foodborne illnesses.  In a piece in Food Safety News, “What the oil spill can teach us about food safety,” he notes the endlessly repetitive responses–all talk, no action–to food safety and other crises involving corporate irresponsibility.

He quotes USDA Secretary Vilsack saying, “You can’t have two [food safety] systems and be able to reassure people you’ve got the job covered…This [referring to the peanut recalls of last year] is a grand opportunity for us to take a step back and rethink our approach.'”

Stearns’ piece concludes with this comment on Vilsack’s remarks:

Sadly, this was not the first time that someone had pointed out the need for systemic revision to food safety regulation and inspection in the United States. And neither was it the first time that expressions of outrage over people dying from foodborne illness were followed by no real changes at all. And all I can say about that is: I’m shocked! No, really, I’m shocked!

In contrast, Jim Prevor,who writes as the Perishable Pundit, writes in the online New Atlantis: A Journal of Science and Technology that fixing the FDA will do little to address food safety problems.  Instead, he recommends:

  • Fix the liability system so retailers as well as producers are liable and make it legal negligence, not strict liability.
  • Root out bribery and corruption in food safety certification.
  • Invest in state testing laboratories.
  • Invest in food safety research.
  • Revitalize the Agricultural Extension Service.
  • Educate consumers.

I’m not sure about the legal liability issues, but most of the rest are really good ideas and would help a lot.  Of course consumers should follow food safety procedures but how about getting safe food to them in the first place?

None of this will happen without policy changes, which is why the food safety legislation matters so much.  It’s a national scandal that the Senate is still sitting on that bill.

  • Would more and better inspections of junk food make it any healthier … not much, if people keep eating junk.

    “Educate consumers.” — that has to be a big part of the solution.

    Jim Purdy

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  • Harry Hamil

    Shame on you, Dr. Nestle, for your totally unsubstantiatable statement, “It’s a national scandal that the Senate is still sitting on that bill.” As you and the Make Our Food Safe coalition well know, a committee made up of staff from Senators Durbin, Burr, Harkin, Enzi, Dodd and Gregg continues to work hard gathering additional information and considering it in an effort to improve S 510.

    Also, as y’all know well, the FDA continues to utilize existing authority to do things called for in S 510 and which have been within its authority for years.

    If you don’t understand Jim Prevor’s suggestion about the issue of legal liability, Dr. Nestle, then you are incapable of understanding the implications of S 510. The law places a standard of behavior on us, growers. that academics, lawyers and health practitioners would never allow to be imposed on them.

    Finally, I challenge you to clearly demonstrate how anything in S 510 would have changed anything of substance in any of the recent foodborne illness outbreaks.

  • Pardon me for being blunt, Mr. Hamil, but Jim Prevor is a tool, a tool that is of the fresh produce industry who reliably acts as a mouth-piece for industry positions. What particularly surprises me about your comment though, is your seeming support for the imposition of retailer liability. The insurance industry spent the 70’s and the 80’s mostly successfully backing “tort reform,” the major result of which was to exempt retailers from strict liability. That said, I totally agree with those seeking to amend SB 510 to exempt small agriculture from most of its requirements.

  • Harry Hamil

    Thanks for being blunt, Mr. Stearns, as it made your position clear.

    As Jim Prevor regularly criticizes parts of the fresh produce industry, I find your characterization a simple broadside that doesn’t address what he’s written in THIS instance. Also, over the last couple of years, his commentary on food safety and response to outbreaks has been dead on. I learned of him due to the 2008 Salmonella Saintpaul fiasco during which, he immediately recognized the poor epidemiological work of the CDC and poor notification by the FDA.

    Jim Prevor advocates a “Switch to a Negligence Standard from a Strict Liability Standard, and Switch Primary Liability to the Trade Buyer.”

    I was focusing on the first part; you, on the second. I support the first; I’m not certain about the second.

    What I was attempting to point out is that we, growers, operate under something very close to strict liability whereas almost all of the rest of business operates under tort liability. I, also, was pointing out that were there an attempt to impose the standard of liability we work under upon academics, lawyers and health practitioners, there would be a gigantic explosion of protest and it would never happen.

    As for your characterization of what happened in tort reform in the ’70’s and 80’s, I remember is quite differently. There has NEVER been any strict liability for retailers. It has always been based upon negligence. And, as best I can tell, the concept of strict liability for manufacturers and, also, producers of food was expanding during the 70’s, 80’s & 90’s.

    Also, most tort reform was oriented toward limitation of the size of collateral/contingent damages. I know of no attempt to limit actual damages. Of course, the collateral/contingent damages are how the attorney is paid.

    If you would like to discuss this further, please write to me at or call me at 828/669-4003, 8 AM – 8 PM Eastern Time Monday – Saturday.

  • Mr. Hamil:
    Doesn’t sound like we disagree too much, except perhaps about the application of strict liability and the intent and scope of efforts at “tort reform.” Strict liability for product-related injury was first applied by the California Supreme Court in 1963 in the famous case of Greenman v. Yuma Power Products. As set forth in the Restatement Second of Torts, which was issued by the American Law Institute in 1965 as a codification of the common law, strict liability was described as applying to the entire chain of distribution, from manufacturer to retailer. The frequency with which retailers were sued (because it was often easier) gave rise the term “deep-pocket defendant.” Tort reform primarily fought against the imposition of strict liability to non-manufacturing sellers. To this day, however, many states still impose strict liability to the entire chain of distribution for a product.