FOOD FIGHT! - Explanations of the difference between the United States and the European Union Food P
- Tree of Knowledge Research
- Feb 18, 2014
- 6 min read
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In their approach to food safety regulations, the US tends to value flexibility, information, and consumer choice. These ideals translate into the active legislative activity of mandating food and nutrition labeling and tenaciously apply product bans, when these products threatened to put consumers at risk. This seemingly proactive approach, however, was not the method that the FDA used when creating and implementing GMO policies. The FDA did not apply product bans obstinately with GM foods, even though little scientific studies regarding GMO safety was executed. The FDA also coupled the lack of product bans with failing to enforce labeling on these genetic products. This goes against the FDA’s approach towards consumer choice. In contrast, the precautionary principle is pivotal to the EU regulation of food safety and is often used to justify actions like bans on products facing scientific uncertainty. The EU does not require strict labeling in terms of food products (except if the product is a GMO in which case the EU does mandate labeling), but will easily allow a ban on a product if they are uncertain about the risks. Consumers in the US are becoming weary that the US is neglecting the wider impacts of this new technology. For that reason, the FDA is leaning towards a more protectionist approach.
Not only has the EU food policies been based on a protectionary approach, they have also been influenced by foresight and proactive action as opposed to the US reactive action. The precautionary principle was never an explicit component of US law. The US law treats the health hazards from GMOs no differently than any other food production technology, allowing them to freely enter the market without aggressive scientific study or consumer awareness. The EU, however, has established a distinctive, and more rigorous, set of regulatory requirements for GMOs. Deciding which approach is better is hard to say at this point because GMOs are fairly new and although many studies claim they have a very small, if at all, effect on human health, who’s to truly say what the effects of these organizes will have in the long run. The FDA only requires voluntary import safety requirements and lacks the resources to truly monitor outside suppliers. Instead, the US relies significantly on import testing to assure compliance. In contrast, the EU mandates procedures to insure the safety of their supplies, mandating inspections and laboratory examination in order for these supplies to receive an export certification and thus being allowed to export such products into the country.
One of the main differences between the FDA and the EU regulations is how they both perceive and manage risk. The FDA considers the risk after a product enters he market, whereas the EU is more risk adverse, creating policies in a more precautionary process before any possible harm can occur. Although China has implemented many regulatory measures similar to that of the EU, due to corruption in the country and the overlapping of different entities in regulating separate spheres of food legislation, the implementation of these regulations has not been successful. China, like the EU, has typically been far more cautious about GMOs; however, their reasons for being cautious are far different from the EU’s reasons. The Chinese government is aware of their global image of having poor food safety policies and therefore, taking a risk-adverse approach to GM food crops will make other countries more comfortable when considering trading with China. Still, wavering on their policies has only increased global concern especially since its regulation of genetically modified food has been unreliable. For instances, although authorities’ claim that China has not approved the commercial planting of genetically modified rice, research institutions have found that genetically modified rice is an easy product to buy in Chinese grocery stores.[i] Several of China’s provisions are ambiguous, in particular the evaluation of the safety of GMOs and their labeling, etc. Like standard food regulations, the involvement of so many authorities causes problems of co-ordination from enactment to enforcement. The State Food and Drug Administration (SFDA) was instituted with the duty of incorporating the administration and supervision of food safety, co-ordinate and organized investigations, and impose penalties for serious violations of the law.[ii] The SFDA, however, has no teeth because the SFDA’s authority relating to food safety is controlled by other ministries and agencies.[iii]
All three countries have experienced a decline in public confidence in government regulation due to food borne illness; however, a majority of these outbreaks have stemmed from China.[iv] Both the US and China are strengthening their legislation in order to approach a more protectionist version of food safety, similar to that of the EU. For example, China has passed the Food Safety Law (FSL) in 2009 in order to create a more comprehensive effort to oversee food safety as opposed to having a variety of different entities with overlapping control. The point of the legislation is to provide a basis for strengthening oversight “from farm to fork”, similar to that of the EU. An important aspect of the FSL will be placing the Ministry of Health as the government entity primarily responsible for food safety. Having one primary governing body will decrease the competition between various governmental entities responsible for food safety and will increase the ability to enforce more centralized standards. An example of how this new policy takes on a precautionary approach similar to the EU is if a substance is on a watch list and is detected by a laboratory, the testers will fail the product even if no scientific reason exists that a hazardous level of contamination is present.[v]
The US is also moving towards a more precautionary approach. Currently pending in congress is the Food Safety Modernization Act (FSMA), a bill that creates a new administrative agency entitled “Food Safety Administration,” which would oversee food safety but not drug approval (whereas the FDA is pulled between both responsibilities).[vi] The FSMA would combat the FDA’s biggest problems by one, ensuring that foreign companies only import foods that meet U.S. standards.[vii] The FSMA will also improve security of food from intentional contamination and improve research on contaminants leading to food-borne illness.[viii] The Food Safety Administration will have more power than the FDA in that they will have the power and authority to recall products, destroy and detain unsafe food when found, and require that all products be traceable.[ix] The new previsions of this act could overhaul the food safety legislation currently existing in the US, “shift[ing] the FDA focus from reactive to preventative.”[x] One of the most intriguing effects of the law will be to launch a massive effort to inspect the increasing amount of imported goods. The FSMA contains heavier protections in terms of inspection and food import controls; hence, the FDA is converging towards a more precautionary approach to policies, similar to that of the EU.
The objectives of US, EU, and Chinese food legislation are based on the same principle of hopping to ensure food safety and consumer health. Faced with several of the same obligations, rights, constraints, and possibilities in the process of regulating food safety, the US and the EU share a common inclination and eagerness to make available to their respective citizens a safe and trustworthy food regulatory system. China, however, is still very corrupt and unorganized, failing to provide Chinese citizens with a credible regulatory system. Globalization has supported the development of global food supply chains and led to the increase of international trade rules. These developments have forced regulatory reform to react to changes taking place in other parts of the world. Given the interdependent characteristic of the food trade market, this is leading, over time, to convergence. The precautionary principles share the idea that it is better to act on a simple threat than to risk serious damage. Though the United States has historically followed a different approach, the principle of risk-benefit analysis, recent crises in food illness worldwide have caused the US to implement more strict regulations in food legislation. The same goes for China; the good news to have come out of the repeated food safety scandals and scares in China is that all relevant players are now taking food safety regulations more seriously and are looking to make changes. If these countries can communicate efficiently, Food safety can offer an important opportunity for the United States, China, and the EU to collaborate for the benefit of each country.
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[i] In re Genetically Modified Rice Litig., 666 F. Supp. 2d 1004, 1014 (E.D. Mo. 2009) adhered to on reconsideration, 4:06MD1811 CDP, 2011 WL 5024548 (E.D. Mo. Oct. 21, 2011)
[ii] See Zhonghua Renmin Gonghe Gou Shipin Anquan Fa (Shi Xing) [Food Safety Law of the People's Republic of China] (promulgated by the Standing Comm. Nat'l People's Cong., Feb. 28, 2009, effective June 1, 2009), art. 89(3), (P.R.C) [hereinafter Food Safety Law], available at http:// www.fas.usda.gov/gainfiles/200903/146327461.pdf.
[iii] Id.
[iv] Rachael Carson's Silent Spring, Ralph Nader's Unsafe at Any Speed, Love Canal and the Exxon Valdez oil spill were the American counterparts to mad-cow disease, dioxin in the food supply, and contaminated blood.
[v] Wenxuan Yu & Canfa Wang, Agro-Gmo Biosafety Legislation in China: Current Situation, Challenges, and Solutions, 13 Vt. J. Envtl. L. 865, 882 (2012).
[vi] FDA Food Safety Modernization Act, Pub. L. No. 111-353, 124 Stat. 3885 (2011).
[vii] Id; See also, Michael R. Taylor, FDA Deputy Commissioner for Foods, The FDA Food Safety Modernization Act: Putting Ideas into Action, Presentation to the Food & Drug Law Institute Food Safety Conference, Jan. 27, 2011; available at http://www.fda.gov/AboutFDA/CentersOffices/OC/OfficeofFoods/ucm241192.htm.
[viii] Id.[ix] Id.[x] Susan A. Schneider, Notes on Food Law: An Overview of the Food Safety Modernization Act, 2011 Ark. L. Notes 39, 40 (2011)
