FDA Final Rule on Detention of Food

On February 4, 2013, the FDA announced a final rule amending the criteria for administrative detention to prevent potentially unsafe food from reaching the marketplace. While this doesn’t apply to soap, cosmetics, forestry, or small woodland ownership (my usual blog topics), there were some issues in it that I just had to comment on.

In January, 2009, Rep. Dingell introduced a second version of the FDA Globalization Act (the first was introduced in 2008) which addressed foods, drugs, and cosmetics. It didn’t go anywhere that year. Then in 2010, the Food Safety Modernization Act was passed and signed into law on January 4, 2011.

One section of the FSMA (Section 207) amended the criteria for ordering administrative detention of human or animal food. Under the new criteria, the FDA can order administrative detention “if there is a reason to believe that an article of food is adulterated or misbranded.

That was a significant change; prior to that time, the FDA was able to detain a food product only when it had “credible evidence that a food product presented a threat of serious adverse health consequences or death to humans or animals.

In accordance with the timetable in the Food Safety Modernization Act, the FDA issued an interim rule with the new detention criteria. That’s what was issued as a final rule several days ago.

In the information about the final rule in the Federal Register (here), the “Background” section says that the FSMA enables the FDA to “better protect public health” and enables the FDA to focus more on “preventing food safety problems.”

There’s a big, BIG difference between “reason to believe” and “credible evidence of a serious threat.” I understand about the need to ensure food safety. When I go to the store, I certainly want to believe that the food I buy there is safe and won’t make me or my family sick. I wonder, though, where the line should be drawn on granting powers to a federal agency to take action, even if it is to “protect the people.”

It’s a slippery slope, to say the least. At the worst case, ending in what used to be called “Supernanny Government.”

I’m reminded of the 1993 movie, Demolition Man starring Sylvestor Stallone and Wesley Snipes in which a cop (Stallone) is brought out of suspended animation into a non-violent future society (2032) to catch the bad guy (Snipes). In this Utopian future, all vices have been outlawed, swearing triggers automatically dispensed citations, and sex and french kissing are illegal because they pass germs.

I hope that’s not where we’re headed.

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