Notice & Comment

The Battle between Public and Private Food Safety Standards

One of the many far-reaching provisions of the 2011 Food Safety Modernization Act (FSMA) authorizes a voluntary program for the accreditation of third-party certification bodies, also known as auditors, to conduct food safety audits and issue certifications of foreign facilities and the foods for humans and animals they produce. FDA finalized this rule in 2015 (effective in 2016) to implement 21 U.S.C. 381(q). The reach of the certification provision is relatively limited: foreign entities may use certifications to 1) establish eligibility for participation in the Voluntary Qualified Importer Program (VQIP), which offers expedited review and entry of food and/or 2) to prevent potentially harmful food from reaching U.S. consumers, the FDA can also require in specific circumstances that a food offered for import be accompanied by a certification from an accredited third-party certification body. Like other regulatory regimes (like the USDA’s system for certifying foods as “organic”), third-party certifiers are not themselves agents of the relevant agency. Rather, they qualify as auditors by proving themselves competent and able through agency-administered exams and training, and are ultimately compensated by the firms seeking the specified designation.

The more interesting part of the third-party certification/auditor system for vetting the safety of foreign sources of food is the existence of those systems that regulate food markets without the formal command of law. That is largely the case in the market between lower-income countries (and their producers) seeking access to markets like the EU and the US. Since 1997, major food retailers (mostly European, but increasingly joined by North American firms) have used third-party certification to restrict access to their supply chains for those food producers who follow extensive requirements for documentation of farming practices; maintain systems for food safety, worker and animal welfare; and adopt codes of practice for safety and sustainability. Now known as Global GAP, these private standards, enforced through approved certification bodies, exercise enormous influence over whether producers in poorer countries may export fish, livestock, fruits and vegetables to high value markets. To be clear, this is not a program aimed at informing consumers. Global GAP prohibits its logo from appearing on consumer goods. Rather, it is a business-to-business system.

While the idea that retailers and grocers might use their market power to drive food safety standards higher, there is in fact little evidence to suggest that the result is safer food. What certainly has resulted is the restriction of access to wealthy markets. Some developing countries have brought the issue of private standards in general, and GlobalGAP in particular, up to the inter-governmental international level. Developing countries have used international platforms to challenge private ordering and have requested that food regulation stay within public control or, at the very least, that private ordering be disciplined by principles set by public institutions. In 2005, a delegate of St. Vincent and the Grenadines brought a complaint in the WTO SPS Committee about GlobalGAP requirements that restricted the country’s ability to export bananas to the EU.

There is in fact an official, public body dedicated to international food safety standards – the Codex Alimentarius Commission run by the Food and Agricultural Organization and the World Health Organization. Is it possible to reconcile private and public sources of food safety regulation? If so, how? That is the subject of the next two posts.

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