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From Industrial to Artisanal: A New Regulatory Framework for a Changing Food Landscape

20 Pages Posted: 23 Jun 2013 Last revised: 15 Jul 2013

Diana R. H. Winters

Indiana University Robert H. McKinney School of Law

Date Written: April 30, 2013

Abstract

The Food Safety Modernization Act, passed in early 2011, is the most significant overhaul of the Food and Drug Administration’s food-safety authority since 1938. It reorients FDA to a preventive rather than responsive stance toward food contamination.

The Act, however, will fall short of its goal of ensuring the safety of the food supply, for several reasons. It will be ineffective in significantly reducing foodborne illness because it is underfunded, and provides for too many exemptions. The use of preventive controls and science-based standards may also make it difficult for regulation to evolve as quickly as pathogens. In addition, the uncertainty caused by the Act’s attempt to incorporate flexible standards for smaller producers will inhibit market entry for small producers focused on marketing their products locally.

Moreover, the Food Safety Modernization Act cements the disparate regulatory spheres of authority over food systems in the United States: on the one hand, rigid federal standards, and on the other a patchwork of state and local regulations, all of it haphazardly enforced. What is needed is a system of centralized decentralization, where states have broad flexibility to establish the structure of their food-system regulation, but are comprehensively overseen by the federal government. Such a system would improve information gathering and crisis-prevention capabilities, and would also serve a rationalizing function among the various spheres of regulatory authority over food. Furthermore, federal oversight of state food-system plans would allow for localities to incorporate other aspects of food safety beyond foodborne illness in food-system design.

Keywords: administrative law, food and drug law, environmental law, Food Safety Modernization Act, food safety

Suggested Citation

Winters, Diana R. H., From Industrial to Artisanal: A New Regulatory Framework for a Changing Food Landscape (April 30, 2013). Indiana University Robert H. McKinney School of Law Research Paper No. 2013-23. Available at SSRN: https://ssrn.com/abstract=2283213 or http://dx.doi.org/10.2139/ssrn.2283213

Diana R. H. Winters (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

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