Much of GAP’s high-profile work has centered on protecting the free speech of government employees who were retaliated against for blowing the whistle on food integrity violations. The government would do better to get its own regulatory house in order than punish its own professionals: Our experience has taught us that failure in government oversight of the food industry usually involves lapses in accountability, inadequate agency authority and/or resources, and a lack of clarity regarding applicable regulations and the role of the agency.
In the United States, food regulation is split among more than a dozen different agencies, ranging from the obvious (FDA, USDA) to the less intuitive (National Oceanic and Atmospheric Administration). Not only is this system wholly irrational, it is also fragmented and ineffective.
At the USDA, food inspections are done by the Food Safety Inspection Service (FSIS) – responsible for the safety of meat, poultry, and egg products. FDA is, for the most part, responsible for the safety of all other foods that are not regulated by the USDA. In addition, FDA also regulates additives and dietary supplements and oversees food labeling and bioterrorism threats to the food supply.
This split of duties can result in oversight based on arbitrary distinctions. For example, both the USDA and FDA have jurisdiction over a canned food factory that produces chili. If it is made just with beans, then FDA is the regulator. If made with meat, then USDA handles oversight. Whichever agency is in charge has a huge impact. The USDA inspection model is “continuous inspection”: There is an inspector overseeing the process every day. On the other hand, the FDA visits sites roughly every 1 to 5 years! This “system” of divided expertise and responsibility leads to confusion among the agencies and on the part of consumers, producers, and the manufacturers themselves. The process is duplicative, costly and fails the consumer.
To make matters worse, the FDA has been relying upon contracts with state food inspection agencies to perform local inspections. But the state agencies lack resources as well. For instance, Texas state officials under contract with the FDA didn’t even know that PCA had a retail plant in Plainview, Texas. Peanut meal from this plant has now been linked to the salmonella outbreak that was initially believed to be limited to PCA’s Georgia plant. How was FDA supposed to stop the Plainview plant from shipping this peanut meal when its Texas partner didn’t even know the plant existed?
Many whistleblowers come to GAP after their food safety concerns were dismissed by agency management. A common report is that the agency backs industry when there is a dispute. Whistleblower disclosures suggest that agencies behave as if they are accountable to the industries they are supposed to be regulating rather than the public. This phenomenon is often referred to as “regulatory capture.” This may be due to out-and-out corruption or to intensive industry lobbying. As often as not, it is the infamous “revolving door” between industry and agency at work. But most government employees are dedicated public servants.
Government meat inspectors have played a critical role in exposing the dangers of “agency capture.” Meat inspector “truth squads” have been vocal about proposed industry self-regulation schemes designed to replace USDA inspectors. As a result, the USDA made self-regulation measures additive rather than substitutive for federal meat inspections. USDA whistleblowers put a stop to a pilot program called “discretionary inspection” which would, if implemented, end daily inspector coverage of processed food plants. Further, inspectors and public health veterinarians blew the whistle and stopped “streamlined inspection systems” designed to replace government inspectors’ carcass-by-carcass inspection with a corporate honor system.
Whistleblowers, both private and public, often discover that there is little the FDA, USDA, or other agencies can do to help. Not only are agencies limited by their oversight functions, they are also limited in their ability to adequately prevent and efficiently react to contamination and outbreaks. The FDA, which is responsible for regulating almost 80 percent of the food supply, neither has authority nor resources to punish or deter corporate bad actors who refuse to comply with food safety regulations.