Sunday, January 22, 2012

Privatization in the new Food Safety Modernization Act

The latest issue of the Harvard Law Review has this "recent legislation" comment about the Food Safety Modernization Act of 2011.  Most of the Act's provisions are helpful updates to federal food safety laws (revising a regime we've had since the 1930's), and should indeed make food safety regulation more scientific, consistent, and efficient.  It also attempts to deal with the huge growth in international trade in foodstuffs.

Privatization also features prominently in the Act, and the HLR comment explains the issue very nicely.  The Act provides for the FDA to accredit third parties - private, for-profit companies - to inspect and approve food before it enters the market.  Given how  unfeasible it would be for the FDA to monitor these private inspectors, the Act authorizes another layer of privatization - private parties accrediting the inspectors instead of the FDA.  As the HLR comment explains, it is likely that courts will uphold this delegation, given the very loose standards we have for delegations of governmental authority to private parties.  Even so, the authors argue that courts should not be as deferential to these private parties as they would to the FDA itself.  The accreditation decisions are somewhat analogous to the decisions in Mead and Skidmore, and the principles of Skidmore would warrant against judicial deference to the private inspection firms.

I agree with this argument, but a logistical problem remains.  The scenario in which the question of judicial deference or scrutiny would arise is one where a food company that has failed its inspection is challenging the legitimacy of the inspector - situations where the food did not go to market.  It is hard to see how judicial scrutiny will help in the opposite scenario, where inspectors approved contaminated food (which they would probably have a financial incentive to do - presumably the food producer will be paying the inspectors, not the FDA).  There would be no challenge in these situations, and actual harm to consumers  (poisoning) could result.

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