WASHINGTON — The food industry needs to gear up for a dramatically different environment when it comes to food safety enforcement, said Peter Barton Hutt, a partner at Covington and Burling.
Speaking to Food Business News, Mr. Hutt said that with sharply higher federal spending on Food and Drug Administration inspections and laboratories, the federal government will "come down like a ton of bricks" on companies with inadequate quality assurance and food safety systems.
Mr. Hutt, a former F.D.A. official and expert on food safety regulatory issues, offered the observations in reaction to the March 14 weekly address by President Obama on the subject of food safety.
The president said the governmentwould spend more than $1 billion to modernize laboratories and ensure the F.D.A. is adequately staffed.
Fault for the failure of the F.D.A. to prevent problems such as the Peanut Corporation of America recall should not be assigned to the agency but largely should be directed toward Congress and the White House, he said.
"It isn’t just Republicans, but Republicans and Democrats," Mr. Hutt said. "Clinton didn’t do any better than Bush. Without money, there are no inspectors. It’s that simple. Obama has the point and understands it."
With this greater focus comes an opportunity, albeit a limited one, for industry to react, he said.
"The industry has a relatively short window during which they can begin to toughen up their own self regulation and get their houses in order," Mr. Hutt said. "If they fail to do so, it is at their peril. The F.D.A. isn’t going to get this large amount of money and then put additional people on the ground overnight. It takes time — a couple of years. If the industry takes a ‘business as usual’ approach, the F.D.A. will come down on them very heavily and should.
"Food companies ought to do whatever is needed to qualify their sources of supply. If it’s produce, they need to go out and find out where that produce comes from, and it needs to be inspected and tested. If it’s peanuts, you need to test for Salmonella. You can’t just accept a certificate from a supplier. You need to test yourself."
Mr. Hutt also recommends food companies engage independent inspectors, preferably ones with experience at the F.D.A., to check suppliers with the objective of maximizing the likelihood that "sources of supply are as good as they can be."
Beyond checking suppliers, considerable work needs to be done internally.
"How do we verify our ingredients are what we think they are, that they don’t have melamine or other foreign chemicals or adulterants?" Mr. Hutt said. "Testing is required as is creating a paper trail to document quality control work that is done.
"You don’t need to test every batch, and nothing is ever perfect. Bad things happen to good people, but without a system like that, you are defenseless. F.D.A. will come down on you like a ton of bricks. I expect the c.e.o. of P.C.A. will be indicted and will go to jail."
In addition to the increased funding proposed by President Obama, Mr. Hutt said work to address food safety issues in Congress is gaining momentum. Each of the bills before Congress shares certain elements while differing in details, he said. Shared is the concept that the food industry needs to take responsibility for the safety of its products, a "common sense" approach, Mr. Hutt said.
Even with a billion dollars, the federal government does not have adequate resources or enough inspectors to ensure food safety, Mr. Hutt said.
"The food industry has to be responsible for these matters," he said. "The industry is the first line of defense. F.D.A. is secondary."
A difference between the current legislation and past attempts to reform Congress is the absence, generally, of a desire to radically reorganize the institutional structure for food safety, i.e., bringing together the U.S. Department of Agriculture and the F.D.A. An exception is the proposal of Representative Rosa L. DeLauro of Connecticut.
"She is a powerful member of Congress who still staunchly believes in bringing the agencies together," Mr. Hutt said, noting that she is chairman of the Agriculture-F.D.A. Appropriations Subcommittee and a member of the Labor-Health and Human Services-Education and Financial Services Appropriations Subcommittees.
Ms. DeLauro’s proposal does not appear to "be getting any traction," Mr. Hutt said. He agrees with those trying to enhance food safety oversight without bringing the agencies together.
"Even if one thought of doing it in the long term, it is highly disruptive in the short term," he said. "I think people on the Hill realize that this would have such a huge negative impact, we don’t want to risk destroying the agency while we try to fix it."
Longer term, Mr. Hutt is skeptical of whether the U.S.D.A.’s responsibilities should be brought together with the F.D.A.’s.
"You have to ask what the concept of looking at dead animals has to do with inspecting peanut factories," he said. "They have nothing to do with each other."
Asked about the role of third-party auditors going forward, Mr. Hutt said that like food companies, these organizations will never have 100% success.
Also like food companies, the auditors should be introspective and "get their houses in order," he added.
"The first thing I would ask is, where did we go wrong?" he said. "AIB definitely needs to review their standards and make sure they are adequately stringent and their inspectors are adequately trained just as F.D.A. needs to and the industry needs to. Everyone along the chain of command needs to do a better job, including AIB. No one can point to anyone and say, ‘You’re the cause of the problem.’ Everyone needs to tighten up."