Not Sick Yet: Food-Safety-Impact Litigation and Barriers to Justiciability

Abstract

The recent spate of well-publicized foodborne illness outbreaks and food recalls, including the massive egg recall in 2010 and the peanut butter recall of 2009, has drawn attention to the nation’s food regulatory system, which is inefficient, underenforced, and underfunded. Multiple agencies oversee food safety, and these agencies must negotiate the competing goals of protecting the public health, marketing the nation’s food supply, and appeasing the interests of regulated entities. This Article provides, for the first time, a comprehensive look at citizen litigation in the food-safety context. I survey the small universe of such cases brought in the last four decades, and argue that more of such litigation would provide an element of “attentive monitoring” and increase the success of the food safety system.

Citizen litigation brought against the government to enforce or strengthen regulation is inherently probabilistic because it is based on the probability of future harm; it has always, therefore, confronted barriers to justiciability, and is likely to do so in the future. These barriers include constitutional and prudential standing issues, and challenges to justiciability under the Administrative Procedure Act. The Article shows that mechanisms developed by litigants in the context of environmental protection to maneuver past justiciability barriers can be used by food safety litigants. Although the food-safety statutes do not contain citizen-suit provisions, as many of the environmental statutes do, this Article finds that the absence of such provisions does not preclude citizen litigation. The increasing centralization of the food supply coupled with a growing awareness of what we, as individuals, put in our bodies, will lead to a continued focus on ways to improve the food-safety regulatory system in the United States. Although the Food Safety Modernization Act, signed into law in January 2011, provides a crucial overhaul of the food-safety system, it does not address some of the most glaring shortcomings of the system. This article opens a discussion of alternative means of enforcement and, for the first time, draws food safety into the scholarship of public-interest litigation.

Keywords: standing, FDA law, administrative law, food safety, citizen suite

JEL Classification: K23, K29, K32