Barry Estabrook has published a great story on the problems with FDA oversight – it is worth a full read, but I like these parts:
“It’s like doing 100 miles an hour on a lonely stretch of highway in Montana,” says William Marler, a Seattle-based attorney who has represented food-poisoning victims in court for 20 years. “Yeah, you might get caught, but in reality the chances of that happening are zero.”
Investigators for a congressional committee turned up something even more worrisome: internal e-mails indicating that Peanut Corporation’s owner, Stewart Parnell of Lynchburg, Virginia, not only knew about the salmonella at his plant, but ordered products that had tested positive for the bacterium to be shipped. “Turn them loose,” Parnell wrote in one message to a plant manager. Results showing contamination were “costing us huge $$$$$.” In a rare instance of prosecutorial vigor, the FDA, which lacks authority to file criminal charges on its own, teamed up with the Justice Department to pursue a case in early 2009. Yet three years have passed with no charges being filed. In the meantime, the lawsuit-besieged Peanut Corporation filed for bankruptcy. “I have never seen a clearer case that demanded criminal prosecution,” William Marler says.
In fact, during the past 20 years, the FDA has only once succeeded in pursuing a significant criminal case, according to Marler. In 1998, Odwalla, a fruit juice bottler based in California, pleaded guilty to 16 misdemeanor charges and agreed to pay fines totaling $1.5 million. Hardly an onerous penalty, given that the company’s E. coli–tainted apple juice killed a Colorado toddler. Three years later, Odwalla’s owners sold out to Coca-Cola for $181 million.
If there is an enforcement arm for food safety in the United States, it’s trial lawyers like Marler, an intense workaholic who estimates that his firm, Marler Clark, has won more than $600 million for clients since he filed his first lawsuits in the early 1990s. In one tongue-in-cheek blog post, Marler suggested that prosecuting executives of food companies that sicken their customers be privatized to him. “I would be willing to put people in jail for poisoning people, and I would do it on the cheap — perhaps for the fun of it,” he wrote. Then he listed several existing laws that any moderately competent government prosecutor could use to put executives of wayward food companies behind bars.
Marler wages his war against contaminated food from lavish offices on the 28th floor of a skyscraper in downtown Seattle. The walls are covered with framed newspaper and magazine clippings chronicling his victories. Given his reputation and plush surroundings, a first encounter with Marler can be disorienting. He favors faded cargo shorts, dress shirts with sleeves rolled up to the elbows, and running shoes that look as if they should have been replaced many, many miles ago. He spikes his conversation with salty language that you’d never hear in a courtroom. And his office is dominated by a stuffed boar’s head, its mouth open to reveal four sharp, curved, four-inch-long tusks — a gift from a satisfied client.
As Marler sees it, the FDA is being slowly starved of the resources and manpower required to fulfill its mandate. In the 1970s the agency conducted 35,000 inspections of food-processing plants each year. Today, it inspects fewer than 8,000, although the number of facilities under its jurisdiction has skyrocketed.
The Food Protection Plan became the basis for the Food Safety Modernization Act, which was passed in early 2011 but has not fully taken effect because it has been held up by the White House’s Office of Management and Budget — a puzzling delay, since the law is supported by both the food business and the administration. Although the act grants the FDA the power to revoke the registration of an offending company, preventing it from selling its products, sterner civil penalties and higher fines included in some early drafts of the bill were stripped out by legislators, Acheson says. While the law is estimated to cost $1.4 billion over five years for food safety, a proper system would cost $10 billion, Marler estimates, comparing the act to “a sparkling brand-new building that has no people working in it.”
The current policy of relying on third-party audits, such as those carried out at Jensen, the Peanut Corporation, and DeCoster, is a “complete and utter joke,” in Marler’s view. “It’s a cover-up. People think it means that inspections occur, but all that’s happening is that the skids are being greased to get product to market. Everyone knows it’s a scam.”
Acheson is more circumspect. He says that with a good auditor, third-party inspections can be effective, but concedes that the lack of oversight causes problems. Marler finds an inherent conflict of interest in the auditing system. Companies that are being inspected pay the inspectors. Those who are too strict will not get repeat business. Lenient ones will always be welcomed. “A better system would be to have public officials do the audits,” he says. But that would mean spending more money, which is unlikely in the current climate in Washington. “We just haven’t had the size of crisis to hit that critical mass where people are outraged enough to pressure politicians,” Marler says.