Prevention, Inspection, and Risk | jgersen | February 11, 2016


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Prevention, Inspection, and Risk

by jgersen Show/Hide

Given the enormous challenges that inspection poses as a regulatory strategy for ensuring food safety, the past sevearl decades have seen a push towards alternative tools to protect the food supply.  Three themes are commonly observed in policy debates.  First, an emphasis on risk estimation.  Although sometimes connoting particular quantitative methods, the basic idea is straightforward.  The particular risks posed to the food supply should be identified and estiamted. Without knowing—and often quantifying—what the risks of contamination or adulteration are, it is difficult to protect against them.   Second, resources should be allocated to points in the food chain that are particularly vulnerable.  Rather than inspecting every egg both before and after cracking, target locations or moments of particular vulnerability to contamination. Or, rely more extensively on auditing and sampling methods.  Third, decentralize the formulation of hazard prevention and response to regulated parties. Most food etablishments must today parepare a Hazard Analysis Critical Control Point plan. An overview is included below. While a HACCP sounds technical, it is really nothing more than working through what and where the risks to food safety are in a given facility and making a plan on how to prevent and respond.  Over time, federal agencies increasingly oversee the formulation and adoption of these private plans for food safety action rather than imposing particular requirements in rules or regulations.  One way of understanding this trend is as a shift away from command and control regulatory tools.  In the environmental policy domain, this has meant relying on performance controls that leave it up to regulated parties to decide how to best reduce pollution to a given level, rather than technology controls that demand a particular kind of scrubber be used to reduce pollution.   In the food context, rather than relying on finished product inspectino, the HACCP model is a systematic preventative appraoch to food safety that addresses physical, chemical, and biological hazards at each stage of the food production process. HACCP is thus a methodological innovation and it is used by both USDA and FDA.  

Although HACCP has only recently found favor with government regulators, it has been around at least since the 1950s, apparently developed jointly by the Pillsbury Company and the National Aeronautics and Space Administration (NASA), who needed safe food that could be consumed in space. See Food Code 2001, Recommendations of the United States Public Health Service, Food and Drug Administration 424 (2001). Down on earth, Pillsbury introduced the HACCP system after food safety problems with their baby food. See William H. Sperber and Richard F. Stier, Happy 50th Birthday to HACCP: Retrospective and Prospective, Food Sfaety Mag. (2009/2010). In the mid 1980's, the National Academy of Sciences (NAS) wrote that “government agencies responsible for control of microbiological hazards in foods should promulgate appropriate regulations that would require industry to utilize the HACCP systems in their food protection programs.” An Evaluation of the Role of Microbiological Criteria for Foods and Food Ingredients 329, National Research Council, National Academy of Sciences (1985).  FDA adopted the HACCP principles for seafood inspection in 1995, followed by the USDA for meat and poultry inspection in 1997. Roberts, Food Law at 142.       



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  1. 2 Show/Hide More American Federation of Government Employees, AFL-CIO v. Glickman, 215 F.3d 7 (D.C. Cir. 2000).
    Original Creator: jgersen
    American Federation of Government Employees entails a challenge FSIS's move to the HACCP model.
    <p>1. Text. The court holds that relying on establishment personnel rather than government employees to inspect poultry violates the text of the <span class="caps">PPIA</span>. The statutory text says that the Secretary shall cause to be made by inspectors appointed for that purpose a post-mortem examination and inspection of the carcasses and parts thereof of all [livestock] to be prepared at any slaughtering, &#8230; or similar establishment&#8230;.” 21 U.S.C. § 604). For poultry, § 455(b) of the <span class="caps">PPIA</span> states: “[t]he Secretary, whenever processing operations are being conducted, shall cause to be made by inspectors post mortem inspection of the carcass of each bird processed&#8230;.” 21 U.S.C. § 455(b). Is the text of the statute so clear that an &#8220;inspector&#8221; must be a government employee?</p> <p>2. Text and Purpose. Would it matter to the court if it could be definitively shown that the new inspection regime was vastly superior to the old in terms of avoiding adulteration?</p> <p>3. Umpires and Pitchers. The court notes that the government believes an inspector can perform an inspection by watching another person perform an inspection. On this logic, urges the court, an umpire is a pitcher because an umpire watches a pitcher pitch. Does this metaphor seem on point? Surely an inspector could watch her own employees perform tasks like testing or observing chickens and still be performing the role of inspecting. Nevertheless, a unanimous panel held that the task of inspection could not be delegated to private employees without running afoul of the <span class="caps">FMIA</span> and the <span class="caps">PPIA</span>.</p>
  2. 4 Show/Hide More Food & Water Watch, Inc v. Vilsack, 808 F.3d 905 (D.C. Cir. 2015)
    Original Creator: jgersen

    <p>1. <span class="caps">FSIS</span>, <span class="caps">PPIA</span>, and <span class="caps">NPIS</span>. As the opinion discusses in some detail, <span class="caps">FSIS</span> administers the <span class="caps">PPIA</span>. Historically, <span class="caps">FSIS</span> inspected poultry using four systems. Offline inspectors ensure compliance with food safety regulations, verify sanitation procedures, and collect samples for testing. Online inspectors inspect the actual poultry. At issue in the case was the New Poultry Inspection System (<span class="caps">NPIS</span>), which shifted from inspector-based sorting and evaluation to establishment-based sorting and evaluation. That is, <span class="caps">NPIS</span> relocates inspection responsibilities to firms rather than government personnel.</p> <p>2. Food Safety Harms. The plaintiffs in Food &amp; Water Watch alleged that the new inspection procedures would increase the risk of food borne illness and therefore sought to stop the program. To satisfy the constitutional requirements for standing in Article <span class="caps">III</span>, plaintiffs must show injury-in-fact. Directly regulated parties typically have no trouble satisfying this requirement because a given federal regulation requires them to take an action or suffer penalties. Poultry facilities would have no difficulty demonstrating standing. For third parties&#8212;individuals not directly regulated by the Rule, showing that they are or are likely to be harmed by the rule is far more difficult. Note that in practice this may mean rules deemed undesirable by regulated parties will be litigated, but rules deemed desirable by regulated parties are less likely to be litigated.</p>

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