Government Food Regulation is a Mess
The federal government has been dispensing nutrition advice for 50+ years, and we're fatter than ever. And food safety regulation is a mess. What will it take to fix it? We'll need to gore some oxen.
As a 23-year veteran of the food industry, I’m amazed at how we all take for granted the safety and efficacy of our food. We waltz into restaurants and grocery stores or happily patronize food trucks and street vendors with little thought about how products and dishes are made and even less about their safety.
Oh, sure, most of us, sometime in our lives, have taken ill from consuming tainted food, likely from old leftovers in our fridge, those deviled eggs sitting out on a hot summer day church potluck, or failing to keep clean those kitchen counters where we handled raw poultry or pork. Maybe you missed that spot of mold on the bread or cheese you ate with your sandwich.
But despite that, Americans have high confidence in our water and food safety. It’s also a running joke in the food industry that while our food safety system works, we would never design it like this today. Ultimately, food makers take food safety very seriously since reputations and brands are at stake. It also matters that trial lawyers are always circling overhead in search of victims, with a hefty take of any proceeds. Those who cut corners on food safety beg for jail time. Most food safety innovations come from industry, not the government, although they often collaborate.
America is the only civilized nation with two separate food agencies with different missions and safety systems. The US Food and Drug Administration, which falls under the auspices of the Department of Health and Human Services, regulates 80 percent of the supply with about 20 percent of resources (everything but meat, poultry, and pork products). FDA relies heavily on state health inspectors to visit FDA-regulated facilities once every few years. Both USDA and FDA agencies dispatch inspectors overseas to foreign facilities that import products to the US.
USDA’s 7,000-person Food Safety Inspection Service is unionized. The Center for Food Safety and Applied Nutrition’s (CFSAN’s) roughly 800 inspectors at FDA are not.
There are all kinds of nuance I’m glossing over here, from which agency regulates “open-faced” versus “closed-face” sandwiches, various forms of pizza and soup, and even the safety of infant foods. It’s complicated.
Meet Frank Yiannis.
Last week's big news in the food world was Yiannis’s resignation as the FDA’s Deputy Commissioner for Food after four years. He came to the FDA from Walmart as its head of food safety. I don’t recall ever having met Frank, but by all accounts - including his resignation letter - the highly respected Yiannis has done yeoman’s work under challenging circumstances, despite the infant formula crisis on his watch. He will depart on February 24th.
In his letter to the Commissioner, Dr. Robert Califf, Yiannis cited frustrations with the agency’s decentralized structure. “In February 2022, as you rejoined the agency, I shared with you that I was considering leaving, expressing my concern that the decentralized structure of the foods program that you and I both inherited significantly impaired FDA’s ability to operate as an integrated food team and protect the public.” Califf is serving his second tour of duty after several months on the job during the second Obama Administration.
Yiannis shared food safety responsibilities with Dr. Susan Mayne, who heads the Center for Food Safety and Applied Nutrition. Both report directly to the Commissioner. Previously, Mayne reported to the Deputy Commissioner for Foods. Dr. Scott Gottlieb, Trump’s first nominee as FDA Commissioner, changed that. Gottlieb is more “famous” now for his work promoting Covid vaccines as a Pfizer Corporation director and his role in trying to censor differing expert views on Twitter.
Like Gottlieb and many of their predecessors, Califf is a medical doctor by training (a cardiologist) with little to no experience in food safety before joining the FDA.
Why is this important? Tuesday afternoon, “Califf is expected to unveil a new vision for the agency’s foods program in response to outside pressure and numerous reviews and reports finding that it is not functioning properly,” reports Washington’s leading and estimable food journalist Helena Bottemiller Evich, who heads the blog site “Food Fix.”
Upon returning to FDA in 2021, Califf asked the Reagan-Udall Foundation for an independent evaluation of the FDA’s “Human Food Programs” (the FDA also regulates most pet foods). They released their 48-page report in December, with the all-too-oft refrain that the FDA lacks resources, needs more power, needs to impose user fees on the food industry (for the joy of being regulated), and should use its power more frequently. The review was led by a former FDA Commissioner, Dr. Jane Henney (Clinton Administration).
I have heard that a lot over the past 24 years, and Congress has given them that and more, especially in the landmark Food Safety Modernization Act of 2011. I lobbied for it. It includes mandatory registration of all food manufacturing facilities, mandatory recall authority, and expanded FDA authority over farm water safety. And it authorized lots more money to enhance import food safety inspections.
For the record, industry inspections on themselves and each other - retailers inspecting food makers who inspect suppliers - are far more frequent and sometimes more intensive than those by government agencies.
There is nothing Califf will suggest that he and the agency can do on their own that will fix what ails them. Tinkering with the organizational structure and management is, at best, a bandaid or narcotic that won’t fix what’s broken, especially since they will bend over backward not to involve Congress if possible. Vested interests, from food companies to agency employees and even many consumer advocates, like the system the way it is. They’re intimately familiar with it. That’s true of many federal agencies, from the Department of Transportation (where I once worked) to the Pentagon. Agencies without reform-minded leadership grow and ossify into unaccountability, slothful inaction, and self-preservation.
The history of food regulation is interesting, which I wrote about last summer here and here, along with my suggestion that we should consider adopting much of Canada’s model as our own, plus a few other twists. Suffice it to say the depression-era Food and Drug Administration can only be fixed by breaking it up into two separate agencies - one or two for foods (one to set standards, perhaps keeping that at HHS, another to conduct food safety inspections), one for drugs - and turning USDA into a true agriculture production and marketing enterprise. The food world in 2023 is very different than when the FDA was created almost 90 years ago. Our food system is both more global and local and is being whipsawed by everything from climate change agendas to ESG scorecards (environmental, social, and governance), including carbon footprint labels. And yes, the United Nations (and others) wants you to get over your “ick” factor for introducing cricket and other insect proteins into your food.
And the government’s engagement in nutrition has an even worse track record.
The federal government entered the nutrition business during the early Carter Administration by launching “Dietary Guidelines.” That was born from the work of a Senate Select Committee on Nutrition and Human Needs, led by the late George McGovern (D-SD), the 1972 Democratic nominee for President. Originally focused on combatting hunger, the Committee’s work quickly expanded into the relationship between nutrition and the nation’s “killer diseases.”
The federal government believed that you needed advice on what to eat, and it still does. We’ve seen the creation of the food pyramid to its new iteration, MyPlate.gov, courtesy of the Obama Administration. And the food industry and consumer groups lobbied heavily to influence the outcome, taking credit for recommendations such as substantial grain and dairy consumption and breathing sighs of relief from soda makers by not having cans painted red (Coca-Cola) or blue (Pepsi) that might disparage the cash cows of certain beverage companies. The process may start with expert advisory committees, but food politics and politicians ultimately decide the outcome.
And then there’s the latest battlefield, the requirement to publish “nutrition facts” on every food product. That’s been expanded lately to include nutrition information on chain restaurant menus and now features “front of pack” or “facts up front” nutrition labeling that highlights calories, sodium, total sugars, and saturated fat (they can add two more icons for “nutrients to encourage,” such as fiber and potassium). The food industry came up with this approach somewhat defensively to avoid onerous “traffic light” labeling being pushed by consumer “advocates,” like in Europe and Latin America, which resemble cigarette-style warning labels.
Speaking of labeling, even how food makers can describe their products is highly regulated, down to approved synonyms.
Interestingly, our government betters are always trying to nudge food makers to behave in a certain way when they’re more in touch with consumers. Worse, have you checked how many nutrition education classes your children participate in at school? Both my sons can count their high school nutrition classes on one hand with fingers left over. They learned more about nutrition from their sports coaches.
Therein lies the problem. We aren’t building a culture of sensible nutrition from an early age. Worse, perhaps, is the perverse view that consumers are victims (I could stop there) of food marketers. Promoting individual responsibility is considered “shaming.” The disintegration of family structures has a lot to do with this since that's how many of us learned essential nutrition. And how many of you took "home economics" courses in high school, where you learned how to prepare nutritious meals?
Meanwhile, no one seems to want to tackle “nutrition labeling” on the one category of products that may be doing more to fatten American adults and contribute to other health issues: alcoholic beverages.
Here’s how all this is working out, as measured by obesity rates.
The federal government has moved beyond advice to directly feed you and your children, from the Women Infant Children (WIC) program to school nutrition and what used to be called “food stamps” (now called the Supplemental Nutrition Assistance Program, SNAP). And that’s just for starters.
Before the pandemic in 2019, USDA provided almost 5 billion school lunches annually. That’s more than 27 million meals per school day (180 days per year), which doesn’t include other school-related feeding programs. Forty-one million Americans - one in seven - participate in SNAP with an average monthly benefit of about $230 per month. The WIC program is the nation’s largest buyer of infant formula. You may have difficulty finding infant formula on your store shelves, but I suspect the WIC program is experiencing no shortages.
The Dietary Guidelines aren’t just designed to advise you on how to eat. It also guides federal feeding program purchases. I remember when the Obama Administration, under the expert leadership of Michelle Obama, came out with its first set of Dietary Guidelines in 2010. Food waste in schools skyrocketed as kids rejected pizza that tasted like cardboard (as my then-public high school son told me). The Trump Administration relaxed many rules to give local school cafeterias more flexibility.
This is being frustrated by more government-influenced, if not imposed, problems, from skyrocketing egg prices (chickens being culled to arrest the latest avian influenza outbreak) to government-exacerbated supply chain challenges. Volatile food prices are climbing higher than most other products (double digits) if you can find specific products (e.g., infant formula).
And the thing that got the government into the nutrition business, hunger, is still a problem. According to the terrific non-profit organization, Feeding America, 34 million Americans, one in ten, including 9 million children, are considered “food insecure” (often missing meals or unsure where their next meal will come from).
Dr. Califf's forthcoming food “vision” will probably get as much attention as Yiannis’s resignation announcement, a buried blurb in the mainstream media, with food bloggers giving it plenty of time and attention for both of their handful of readers. It may help at the margins. But to really fix what ails food and nutrition regulation in America, we will need visionary new, Elon Musk-style leadership that doesn’t eschew vested interests but places a higher value on fresh, bold, and creative thinking at an order of magnitude ten times higher than either Califf, Congress, or the food industry has paid to date.
There are dozens of commission studies and recommendations on reorganizing our federal food agencies. Herbert Hoover crafted the first one right after World War II, and the Government Accountability Office (GAO) frequently issues reports that usually gather dust.
Since we all eat and drink and confront the good and bad consequences for our health, this should be an attractive political issue for aspiring Members of Congress and even presidential candidates looking to make a difference in everyday lives. Food and beverage consumption and regulation are about jobs (1.2 million work in the food manufacturing industry alone), health care, and much more. Americans - people everywhere - have an emotional connection to what they eat and drink.
Food regulation and nutrition education are seriously off track. It needs to be reinvented.
Since President George W. Bush brought up the issue of a single food agency during his campaign in 2000 and the Obama Administration aggressively sought to change nutrition labeling and standards a decade ago, there has been no congressional or presidential leadership on these issues. There are three or four senior Democrats who are longtime leaders on food issues, primarily on behalf of consumer-focused advocacy groups. But these septuagenarians have mainly grown silent. Worse, there seems to be no interest in these issues by Republicans anywhere, and that’s too bad.
I get it - there’s no easy “win” and fewer political rewards, with no coalition or constituency armed and ready for action. Worse, every action will face an opposite reaction. Culture wars are sexier and draw more attention. And this isn’t about the FDA workforce. I’ve known and worked with many terrific professionals. Organizational, structural, programmatic, political, and leadership problems aren’t their fault.
The only possible presidential candidate with real experience on food issues is former Secretary of State Mike Pompeo, who worked to expand national uniformity over food warning labels and fight mandatory GMO (genetically modified foods) labeling as a freshman GOP Congressman from Wichita, Kansas. He ultimately lost both fights. He’s been more preoccupied with national security issues since.
And no, Americans aren’t clamoring for change, either. They’re taking all this for granted so long as the products remain abundant, affordable, and safe (stay tuned). Many of my former food colleagues may cite this as evidence that increasing government engagement works. They know better.
But leadership often requires tackling an issue before it becomes a bigger problem, no pun intended. George W. Bush was the last to realize this, including focusing in 2005 on the need for pandemic planning and readiness. He worried about another Spanish flu outbreak. He deserves a lot of credit for what he did, which helped mitigate the H1N1 “swine flu” crisis of 2009.
We could use that kind of leadership on something that affects us all personally and directly before it worsens. It starts by realizing that Ronald Reagan was right: government isn’t the answer to our problem; it is the problem.