Trump Administration Proposes Consolidating Federal Food Safety Responsibilities Into Single Agency at USDA, Renaming FDA the "Federal Drug Administration"

Trump Administration Proposes Consolidating Federal Food Safety Responsibilities Into Single Agency at USDA, Renaming FDA the "Federal Drug Administration"

On June 21, 2018, the Trump administration proposed consolidation of the federal food safety functions of the U.S. Food and Drug Administration (FDA) and the U.S. Department of Agriculture's (USDA) Food Safety and Inspection Service (FSIS) into a single agency housed at USDA called the "Federal Food Safety Agency."

Per the administration, this proposal would "address the current fragmented Federal oversight of food safety…[and] would cover virtually all the foods Americans eat." Consolidation of food safety authority is not a new idea. In fact, President Barack Obama also advanced a similar plan, although he proposed to house food safety under FDA rather than USDA. However, it will take more than a White House proposal to accomplish this reorganization. As Dan Flynn observed in his recent piece in Food Safety News:

[P]residents [once] had the power to reorganize the federal government, subject only to a veto by Congress. But Congress killed that process during the Reagan Administration and instead put itself at the center of reorganization proposals for the past 30 years. Obama was not able to get Congress to return to the congressional veto system. Some observers say the reason reorganizations die in Congress is that any changes by the executive branch of government also change legislative branch committee lineups.

By way of background, USDA is responsible for the safety of meat, poultry, processed egg products (e.g., liquid eggs) and catfish, while FDA is responsible for all other foods, including seafood and shelled eggs. In support of its plan – which would, according to the administration, "reduce duplication of inspection at some food processing facilities, improve outreach to consumers and industry and achieve savings over time while ensuring robust and coordinated food safety oversight” – the Trump administration offered the following examples of how "illogical our fragmented and sometimes duplicative food safety system can be":

  • FDA regulates shelled eggs, while USDA regulates liquid eggs;
  • FDA regulates cheese pizza, while USDA regulates pepperoni pizza; and
  • FDA regulates closed-faced meat sandwiches, while USDA regulates open-faced meat sandwiches.

Following the reorganization, FDA – which would be renamed the "Federal Drug Administration" – would regulate drugs, medical devices, biologics, tobacco products, dietary supplements and cosmetics. The Trump administration did not address in its proposal whether all of FDA’s current food functions would transition to USDA labeling, menu labeling, packaging and food contact substances and the like). Per the proposal, FDA would continue to regulate dietary supplements. Currently, FDA regulates supplements as foods – a fact that might be lost on some – although it regulates them differently than “conventional” foods. Accordingly, FDA will seemingly retain at least part of its current food portfolio if/when the consolidation plan is implemented.

The proposed consolidation of FDA’s and USDA’s food safety functions would, according to the administration, merge approximately 5,000 full-time equivalent (FTE) employees and $1.3 billion from FDA with about 9,200 FTEs and $1 billion in resources in USDA. While additional details regarding the three-page proposal will need to be fl eshed out on a number of fronts, one immediate question is whether or not the administration plans to shrink the size of the federal food safety workforce and/or budget following the consolidation.

Despite the sincerity of the administration’s proposal, as discussed above, the change (if any) would not occur overnight. Rather, merging the food safety functions of FDA and USDA would require congressional action and reconciliation of
regulatory approaches, which the administration acknowledged in its proposal. To be sure, several previous singlefood safety agency legislative proposals have been unsuccessful. However, given the uptick in foodborne illnesses and recalls in recent years, perhaps Congress will view President Trump’s proposal more favorably than it did President Obama's plan.

If you have any questions regarding an issue raised in this alert, please contact the author or the attorney at the firm with whom you are regularly in contact.

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