With or Without New Legal Authority, Agencies Move to Improve Food Traceability

By Ricardo Carvajal –

FDA and USDA’s Food Safety Inspection Service (“FSIS”) announced a public meeting intended to “stimulate and focus a discussion about mechanisms to enhance product tracing systems for food” that will “help FDA and FSIS determine what short and long term steps the two agencies should take to enhance  the current tracing system for food.”  The Federal Register notice explores some of the problems with the current tracing system that have been brought to light by recent contamination events, and requests comments and data on a number of issues, including:

• What should be the core elements of a product tracing system (e.g., what information elements should be included, and how far up and down the chain of distribution should those elements be transmitted)?
• What records should be kept by which parties in the chain of distribution, and in what format?
• Should enhancements to the current system be risk-based?
• What would be the costs and benefits of implementing an enhanced  system, and is such a system feasible?

A critical question is whether, and to what extent, there is a need to move from the current “one up/one down” system to a “whole chain” system, which would enable linking a particular food to its manufacturer, ingredients, origin, chain of distribution, and transporter – at any stage of the supply chain.  The Food Safety Enhancement Act of 2009 (“FSEA”), recently passed by the House, would explicitly authorize FDA to issue regulations requiring those who produce, manufacture, process, pack, transport, or hold food to adopt a “whole chain” system.  However, FDA would first be required to identify tracing technologies, hold a public meeting, and conduct pilot projects to explore and evaluate tracing systems.  The recently announced public meeting should give FDA a head start on these requirements, should FSEA or something like it become law.  If FSEA does not become law, then FDA will have to grapple with the issue of how far it can go in remaking the current system under the agency’s existing legal authorities.