Food Firms Put Up a Fight

9/18/2003 Food Firms Put Up a Fight - 9/12 Newsday

Food manufacturers and importers have filed hundreds of protests seeking to scale back regulations proposed under the Bioterrorism Act of 2002 by the Food and Drug Administration aimed at strengthening its ability to prevent and contain a foodborne terrorist attack. Under one regulation, food companies would have to give substantial notice of import arrivals and keep detailed records of where ingredients in each food item came from.

Although deliberate food contamination has seldom occurred in the United States, experts say it could be done fairly easily with devastating economic consequences but likely few fatalities.

The regulations also would apply to food contamination that is unrelated to terrorism and would give the FDA new powers long advocated by consumer groups and some congressional Democrats.

"These are basic powers the FDA should have had long before Sept. 11," said Caroline Smith DeWaal, food safety director for the Center for Science in the Public Interest. "The risk here is quite large that the food industry will succeed in weakening the regulations so they're totally ineffective."

Industry groups, long opposed to increased oversight, say the regulations would be the FDA's most expansive power increase and go beyond what Congress and the administration intended in the Bioterrorism Act. The FDA regulates all domestic and imported food except meat, poultry and egg products, which the Agriculture Department regulates.

"In some cases companies would be forced into changing the way they manufacture or process food," said Rick Jarman, vice president of regulatory and environmental policy for the National Food Processors Association, a large industry trade group.

The FDA's regulations would implement the Bioterrorism Act's four major food-related requirements:

The 400,000 domestic and foreign companies that make, process, pack, or hold food for consumption in the United States must register with the FDA.

Those companies, to help the FDA trace where contaminated food came from and went, must keep records of who supplied and who bought each item.

Food importers must notify the FDA by noon the day before shipments arrive in the United States, describing each food article and its manufacturer, grower, importer and originating country, so inspectors have time to get to a port of entry.

While seeking court approval to seize suspect food, the FDA can now temporarily hold the food.

Douglas Archer, the FDA's former deputy director for food safety, said the recordkeeping requirement would have a "tremendous impact, not just on bioterrorism acts, but on the ability to do recalls for natural occurrences."

But Jarman of the food processors association said it would be "very difficult" to keep records of, for example, the source of each ingredient in a can of soup. His organization wants less-detailed record-keeping required and to allow 24 hours to produce records, instead of four hours proposed by the FDA.

The food industry's lobbying follows last year's campaign that persuaded Congress not to allow mandatory food recalls - they remain voluntary - or to restrict ports where food can be imported.

Now that the Bioterrorism Act is law, the industry and importers are focusing on how the FDA interprets its requirements. A major effort concerns the definition of "perishable food." The FDA says it's food that loses value within seven days, such as fresh fruits and vegetables, seafood and milk.

Food makers and importers say the period should be 90 days or 120 days to include items such as potato chips, cookies and baked goods that they say lose value every day because consumers prefer those with a more distant expiration date.

DeWaal of the Center for Science in the Public Interest called that "preposterous" and noted that Black's Law Dictionary defines "perishable" as "subject to speedy and natural decay, e.g. fruits, vegetables, dairy products and meat."

The definition is significant because the new law requires the FDA to deal with detained perishable foods within about seven days. Nonperishable foods can be held for 30 days while the FDA seeks court approval for permanent seizure.

But the FDA worries that if more foods are "perishable," it might not have the resources to inspect and test them all within the shorter time period, forcing some detained food to be released.

"They're saying, make everything expedited," said one FDA official. "Well, you can only do so much."

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