FSMA federalism

May 7, 2015

The Produce Marketing Association (PMA) recent webinar on implementation of the Food Safety Modernization Act (FSMA) would have been music to James Madison’s ears.

Madison was chief among the founders of the United States in advocating a federal constitution that reserved certain powers to the states as a check to overwhelming central power. This was the beginning of what we now call “federalism” and the inspiration of the 10th Amendment to the Bill of Rights.

This kind of federal-state cooperation could turn out to be a major feature of the rollout of the FSMA, although practicality rather than political science seems to be the prime motivator.

Getting state agencies, particularly state departments of agriculture, involved in FSMA implementation and enforcement is a certainty for a very simple reason: there can never be enough FDA foot soldiers to take care of inspections and other enforcement activities.

This cooperation could also be good for growers and produce processing companies.

Jennifer Thomas, FDA co-lead for the FSMA phase 2 implementation team, told webinar participants the federal-state partnership would be part of creating a seamless food safety system.

“We will work closely with government counterparts in both state and other federal and food safety systems stakeholders,” Thompson said.

Stephen Stritch, president of the Association of Food and Drug Officials, said his organization was “fully engaged in the implementation process.” This engagement includes conducting training courses and issuing certificates to industry food safety personnel, particularly in smaller companies.

“It’s clear to us that the states will play a large ole in implementation. FDA is not in a role to hire thousands or even hundreds of inspectors. It will have to rely on states. State and local agencies conduct almost 90 percent of food inspections in the county right now,” Stritch said.

The fascinating angle here is how the actual inspection process could mirror the federalism contained in our Constitution. Stritch said state inspectors might conduct inspections for FDA under credentialing, but that the states would differ in adoption and enforcement of FSMA rules.

“Some states will adopt entire rules, others certain pieces and others not at all,” he said.

State officials are more than happy to take on the FSMA assignment, said Bob Ehart, policy and science advisor for the National Association of State Departments of Agriculture.

“We’re comfortable with that role,” he said. “We speak farm. We speak agriculture.

We also understand the public health mandate. It’s a difficult task. A lot of things need to be done, but we can actually work with FDA, educational and industry partners as we try to achieve our new goal of prevention of foodborne illnesses.”

Ehart laid out two simple principles that, if followed by inspectors at any level, should go a long way toward enhancing food safety while avoiding overzealous regulation. The principles are “educate before you regulate” and “have a continuous improvement model.”

We are now walking the last few miles before the full impact of FSMA implementation hits home. The clock is ticking on court-mandated deadlines for implementation of the separate FSMA rules (to take a quick look at the deadlines, see this chart on PMA’s website.

But as FDA completes its implementation plans, company officials should be completing their compliance plans. After that, these two forces will begin to interact. When they do, wise companies will be those that already have cooperative, non-adversarial relationships established with their regulators, state, federal or otherwise.

Lee Dean, editorial director