Illnesses caused by food contamination make headlines regularly. Yet a bill to strengthen the FDA and overhaul our national food safety regulation has languished in Congress for more than a year. Kojo explores the sweeping changes proposed, and whether or not the Senate will vote them into law before the end of the session.


  • Caroline Smith DeWaal Director of Food Safety, Center for Science in the Public Interest
  • Ellyn Ferguson Agriculture Reporter, CQ-Roll Call Group


  • 12:06:42

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, a slice of the War of 1812 at a much-traveled local intersection near you, but first, spinach, peanuts, tomatoes, eggs, all sources of salmonella outbreaks. They're not -- they have not only made people sick, they made it clear our food rules aren't working. Every year, 76 million people get sick and 5,000 die from eating contaminated food. Government inspectors only make it to most food producers once a decade, and they can't order a recall even if they suspect food is tainted.

  • 12:07:30

    MR. KOJO NNAMDISo why is it taking Congress so long to fix our broken system? The House passed a bill that would give the Food and Drug Administration broad new powers, but the companion bill is stalled in the Senate. This week, there was finally some movement. The Senate said it will take up the bill during its lame-duck session after the November elections. If it passes, it could usher in the biggest changes to food safety laws in 70 years. But will more inspectors and self-reporting by food producers really make dinner safer? Joining us to have a conversation about food safety is Caroline Smith DeWaal. She is director of food safety at the Center for Science in the Public Interest. Thank you very much for joining us.

  • 12:08:15


  • 12:08:16

    NNAMDIAlso with us is Ellyn Ferguson. She is an agriculture reporter with Congressional Quarterly. Ellyn Ferguson, thank you for joining us.

  • 12:08:24

    MS. ELLYN FERGUSONOh, thank you.

  • 12:08:25

    NNAMDIYou can join this conversation, if you have questions or comments, at 800-433-8850 or you can go to our website and join the conversation there. Caroline, explain the food safety laws we have in place now. They're more reactive than preventive. And the last major revisions were made in 1938?

  • 12:08:46

    DEWAALThat's right, Kojo. And the food safety laws really originated in 1906 with, first, the publication of "The Jungle." And then very rapidly after that, Congress adopted legislation both for meat safety and also for the Food and Drug Administration. Those laws were last updated in the 1930s. So we're long overdue for more a modern system of food safety oversight. And we've seen the consequences with all of these outbreaks. We really are hoping Congress is going to make good from all the tragedies that have occurred and all the suffering that many families have endured as they've suffered from the spinach and then peanut butter and the most recent egg outbreak. So it's critically important that Congress act on this legislation before they -- before the Congress ends in December.

  • 12:09:50

    NNAMDIWith so much public concern after all these food recalls and contamination outbreaks, why hasn't Congress managed to pass any tougher food safety laws?

  • 12:09:59

    DEWAALWell, Kojo, we've -- we were very lucky and very happy when the House passed this companion bill in the summer of 2009. There have been dozens and dozens of hearings. I've testified myself in at least over a dozen hearings in the last three years. So Congress has really reviewed this. And then, also, the Senate HELP Committee for health, education, labor and pensions, they also passed legislation in November. So it's really been sitting in, ready to go to the Senate floor for a year now.

  • 12:10:41

    NNAMDIEllyn, what new powers would the proposed law give to the FDA?

  • 12:10:46

    FERGUSONWell, it would give the FDA the power to do mandatory recalls if warranted. It would give the FDA access to records of food processors and producers. It would put a greater emphasis on prevention, testing, training. It would put a greater emphasis on the ability to be able to do trace back when there's an outbreak so that they can get to the bottom of it much more quickly. It would give the FDA more tools to do more inspections of imported food. That's one of the things that changed since 1938, a great deal of certain foods that we eat are imported. And at this point, the FDA only samples about 1 percent. So there's a greater emphasis on that.

  • 12:11:39


  • 12:11:39


  • 12:11:40

    NNAMDIGo ahead, please.

  • 12:11:40

    FERGUSONAnd basically, it would require better record keeping. That's been a slowdown on -- often with recalls or outbreaks in trying to figure what came from where.

  • 12:11:51

    NNAMDIAgain, you can join the conversation at 800-433-8850. Ellyn Ferguson, it's easy to understand why consumer advocates support the effort to add more inspections and accountability to our food system. But why are food processors and grocery groups supporting it also?

  • 12:12:09

    FERGUSONPublic confidence. Every time you have a recall, that's a dent in public confidence. Now, in the past, that's bounced back. But the industry does numerous surveys, and it's not coming back as quickly as it did in the past and for certain products. And essentially, what they want with the increased enforcement is the ability to say to the public, we now meet a higher standard. We have the federal government looking over our shoulder. We have a federal government doing a better job of coordinating with state and local people. And we are meeting higher food safety standards. So trust us and buy our products.

  • 12:12:51

    NNAMDIIndeed it's my understanding that the 2007 spinach contamination in 2007, that the entire industry's crop was thrown out and it resulted in huge losses to all spinach farmers. And the public apparently has a lingering concern even after the immediate scare passes, and that continues to dampen sales. Is that correct, Caroline?

  • 12:13:12

    DEWAALThat's right. The fact is that this antiquated food safety system actually costs the industry money, and it creates a lot of uncertainty in their business plans because if another supplier of the product they produce has an outbreak or a recall, it affects their sales, and it can affect it for a long time to come. So the food industry really has come around to the fact that it doesn't help them to have an ineffective FDA. They need a real cop on the beat to make sure everyone is playing on the same level playing field.

  • 12:13:51

    NNAMDIBut there are still questions. Here is one from Patrick in Washington, D.C. Patrick, you're on the air. Go ahead, please.

  • 12:13:59

    PATRICKYes. Can you hear me?

  • 12:14:00

    NNAMDIWe can.

  • 12:14:02

    PATRICKOkay. I have a question about the effects this bill is going to have on small farmers or, say, for example, raw milk cooperatives. I imagine these people might for a lot of reasons have difficulty or just don't want to comply with whatever safety regulations might be necessary for larger corporations. So how will this bill handle small farmers and...

  • 12:14:24


  • 12:14:25 whose practices are not, you know, conventional?

  • 12:14:28

    NNAMDIPatrick, you're absolutely right. A variety of small and organic farmers are worried that the new law would impose one-size-fits-all rules and cost that would be a hardship for them. Caroline how would the law and the half dozen proposed amendments affect small farmers and producers?

  • 12:14:44

    DEWAALWell, small farmers, first of all, are not regulated today. They don't have any food safety standards that they're required to comply with, except perhaps those set by a few states. But the bottom line is the food that's coming from small farmers today is largely unregulated. That's not really going to change under this new legislation. FDA will have the ability to set standards for farmers, and those standards, it's still going to be really an honor system that farmers comply with those standards.

  • 12:15:23

    DEWAALToday, the only time FDA visits a farm is if they're involved with an outbreak. And we don't think that's going to change under this legislation. FDA simply doesn't have the inspection capacity today to even visit the food plants that its in charge of. So we will have new safety standards, but Congress has adopted a number of amendments already to the legislation, those proposed by Senator Bernie Sanders and some others that really are designed to ensure that there's training, and there's appropriate implementation. So that small farmers aren't disadvantaged under this system. The bottom line, Kojo, is we all shop at farmers' markets. We all value the produce that's coming in from those small farmers, and nobody is trying to hurt them.

  • 12:16:16

    NNAMDIThere's an amendment from Montana Democratic Senator Jon Tester that would exempt small producers from some of the requirements of this legislation. Ellyn Ferguson, what's the likelihood of that making it through the final passage?

  • 12:16:30

    FERGUSONTo tell you the truth, I don't know. I think he probably has a good chance that he will have a chance on the floor to explain his amendment. As the caller illustrates, there's still a lot of concern out there among smaller producers about the effect of the bill. Even though in the manager's amendment, there are numerous references to the FDA providing flexibility, considering size and basing its inspections more on high risk.

  • 12:17:03

    FERGUSONThis bill really focuses in more on food processing because we eat more processed foods than we did in 1938. And the food system essentially draws meat -- well, that's USDA -- but different ingredients from many different places, and then you get a product, a food product that goes on our shelves or in our refrigerated cases. And the emphasis is trying to police there, so that we can be able to trace back when there's a problem, and then also to try and put the greater emphasis on how standards for raising and producing those ingredients that go into our foods.

  • 12:17:42

    NNAMDIEllyn Ferguson is an agriculture reporter with Congress Quarterly. She joins us in studio, along with Caroline Smith DeWaal, who's director of food safety at the Center for Science in the Public Interest. Food Safety News says the United Fresh Produce Association remains opposed to the Tester amendment or any exemptions for farms based on size. Several consumer groups are also opposed to blanket exemptions, Caroline.

  • 12:18:07

    DEWAALAbsolutely, Kojo. We are very concerned that some of the exemptions that Senator Tester has proposed to date, and we don't know what he'll finally go to the floor with. But what he's proposed to date would exempt large volumes of food. For example, it doesn't just impact farmers. His amendment actually impacts manufacturers who send at least a majority of their produce directly to consumers. Well, you know, a lot of Internet sales goes directly to consumers, so we're really worried that some of his amendments could essentially leave people maybe producing for -- to sell on the Internet essentially unregulated. Anyone who produces food for U.S. consumers should meet minimum standards. We're never gonna have inspectors in every food plant like we do in the meat and poultry area today. That's not realistic, but they should meet minimum standards. They should have a food safety plan in place, and that's what this legislation does.

  • 12:19:18

    NNAMDIPatrick, thank you very much for your call. If you have already called, stay on the line. We will get to your call. First, we've got to take a short break. We have lines open. You can call 800-433-8850. If you have questions or comments about legislation pending in Congress having to do with food safety you can also send us a tweet, @kojoshow, or send an e-mail to I'm Kojo Nnamdi.

  • 12:21:28

    NNAMDIWe're discussing food safety and legislation pending in Congress with Ellyn Ferguson. She's an agriculture reporter with Congressional Quarterly. And Caroline Smith DeWaal, director of food safety with the Center for Science in the Public Interest. Here is Eric in Silver Spring, Md. Eric, your turn. Go ahead, please.

  • 12:21:46

    ERICWell, thank you, Kojo. I love your show. Thanks for taking the call. I just had a basic question, which is -- I thought I heard one of your guests say that this bill has been sitting around for a year or something, and what's confusing to me is why things have been held up for so long. I presume there's very broad support for fixing our food safety system since it's so old. What's holding it up, and what should people do to try to encourage their members of Congress or senators or whatever to do...

  • 12:22:21

    NNAMDII'll have Ellyn Ferguson respond to what's holding it up and Caroline Smith DeWaal respond to what people can do about that. First you, Ellyn.

  • 12:22:28

    FERGUSONWell, the House passed its bill in July 2009, so that was done. The Senate bill -- health committee passed its bill in November. It was side track by health care, by jobs and economic bills, and then there was also some negotiations on various amendments by the managers trying to clear the path. So it appears that pretty much it got overshadowed by some of the larger issues of the day. Health care, if you remember, was a long-drawn-out, protracted event. And I think it's been very frustrating for a number of the supporters. Everyone I've talked to, I've asked what's going on here? Is there more opposition than I'm picking up on? And the question just seems to be about timing and then also about growing gridlock in the Senate itself, which is an irony considering that this bill in the Senate has been negotiated between Democrats and Republicans, has a number of Republican supporters -- Senator Mike Enzi of Wyoming, the ranking member of the health committee, Sen. Judd Gregg -- neither one of them regulation-loving Republicans. You know, they see this as an issue that needs to be dealt with, and they believe that this is probably the best way to deal with it, making compromises as we go.

  • 12:23:54

    NNAMDIWhat advice would you give to Eric, Caroline, about trying to move this legislation along faster?

  • 12:24:00

    DEWAALKojo, thanks. The key thing for consumers to do and to understand that passage of this legislation is critical to avoid future outbreaks. There are two websites I'm gonna give your listeners. One is that takes you to the Center for Science in the Public Interest. And there, you'll see, on our lead screen some broken eggs, and you'll see a phone number there where you can use to call your Senate offices and ask them to get this done before they leave town again. The other website is easier to remember. It's called And people also can get very similar information and an activist alert off of that website as well. So either go to for Center for Science in the Public Interest, or Either one will get you to an alert that you can e-mail or call your senators. The key thing, though, is while senators are at home, a lot of them are running for reelection. Go to where they're speaking and ask a question on food safety. We just can't wait for more outbreaks to document that this system's broken and it needs to be fixed.

  • 12:25:27

    NNAMDIThank you very much for your call, Eric. A variety of federal, state and local agencies have responsibility for food safety. Ellyn, could you explain what falls under the FDA and what the U.S. Department of Agriculture oversees?

  • 12:25:40

    FERGUSONWell, I'll start with USDA because that's more narrow. They do meat, poultry and egg products -- processed eggs, not eggs in the shell. And FDA is responsible for almost everything else. There are 13 other agencies, however, depending on the circumstances that might have some jurisdiction because of 30 varying laws that give them that power. There have been problems with coordination between the agency -- between the two major agencies and among the agencies. The Government Accountability Office has documented that. The inspector general's office or the FDA hasn't documented that, so that's not a secret. One of the things that might come out of this legislation if it becomes a final law are perhaps regulations and a greater working relationship or at least with state, local inspectors who now kind of fill in where the FDA can't do the inspections.

  • 12:26:45

    NNAMDIAnd Caroline, in the recent case on -- of contaminated eggs, USDA inspectors went regularly to the Iowa farms and questioned to grade the eggs, and they noticed the unsanitary conditions. But the inspectors had no jurisdiction to do anything about them and never reported them to the FDA. Would the new rules improve communication between these agencies?

  • 12:27:06

    DEWAALThe -- it was really tragic that we had federal inspectors actually on site who could have, if they'd acted earlier, potentially helped to prevent this from happening. The bottom line today, though, is the FDA does have regulations in place for these egg facilities, and they've committed to go there at least once a year or so. Or at least in the next two years, they get to visit them once. The bottom line is this -- these inspectors that are sprinkled all over the federal agencies aren't working well together. And the legislation will help, but it won't fix an underlying problem that does point to the need for a much more streamlined federal approach to food safety.

  • 12:27:56

    DEWAALThe agencies have promised us for years better coordination, but it's time for them to deliver. And so we were very interested with some discussions on a single food agency in a recent debate on the legislation. Though it wasn't picked up by the Senate, it wasn't moved forward, but they were looking at that question. But the bottom line today is we can't wait for a perfect system. The FDA today needs these new authorities to do its job, so we are very optimistic that the Senate will act when they come back during the lame duck session. They will act to pass this legislation and let it go to conference, so we get a strong bill on the president's desk before Christmas.

  • 12:28:45

    NNAMDIHere is Jackie in Washington, D.C. Hi, Jackie.

  • 12:28:49

    JACKIEHi, Kojo. Good afternoon to you and your guests. What a wonderful program. This is the first time that I've ever contacted your show. I'm a breast cancer patient survivor still in treatment, so this issue is of high importance to me because while going through chemotherapy with the diminishment of white blood cell count, it was imperative that I got good food and that sort of thing. And the one thing that I was struck by is -- there was a -- there was a discussion in years past about indicating the country of origin on our food, meats and what have you. And my -- and so I have three questions.

  • 12:29:33

    JACKIEDoes this bill in any way address that concern or that subject? And secondly, was I correct to understand that this bill focuses more on the food processing side of inspections and the like? And third, what's the bill number? I'd like an opportunity to go online myself to look at the -- to review the bill. And sorry, just a last tag on. The discussion you just had with her, Kojo, I don't think there was an affirmative in that response, so I'd like to ask again, does that bill really address better coordination among the inspectors and the like, because once a year...

  • 12:30:21

    NNAMDIHere's what I can tell you on the issue of better coordination. Senator Tom Coburn has been complaining about that, and he's been blocking quick consideration of the bill because he feels apparently fairly strongly that the bill should address that issue of better communication and coordination. Caroline, you can deal with the other aspect of the question directed to you.

  • 12:30:42

    DEWAALYeah, the -- first of all, the bill number is Senate 510. It’s called the FDA Food Safety Modernization Act. And your caller is correct that it does -- it's Jackie, right? Jackie is correct that it does deal with the food processing side more than the on-farm pieces of food safety. And yet the bill does contain very important standards that will apply to farms especially if we don't get these exemptions through. But the issue of Country-of-Origin Labeling is also very important, and Jackie, you are absolutely right that as a breast cancer survivor and somebody in treatment, you have to take special care as do elderly consumers and those feeding young children to make sure that your food is absolutely safe. Country of Origin Labeling was passed and adapted by Congress and the regulations have already been adopted, so you should already be seeing Country of Origin Labeling on food products in your grocery stores.

  • 12:31:53

    NNAMDIThank you very much for you call, Jackie. Here now is Allan in Alexandria, Va. Allan, your turn.

  • 12:32:02

    ALLANYes, thank you, Kojo. I have just moved here from the State of Georgia, which is a very agricultural-friendly state, obviously. And I just wanted to raise a point that was brought up a few minutes ago about the inability of governmental agencies to deal with artisanal producers. I'm a certified sommelier and have been a cheese monger in the past, so I'm fully aware of these things. The -- outside of Atlanta, a woman tried to create an urban farm for -- it was down near the Atlanta airport -- for producing goats' milk cheeses. She had a herd of about 70 goats and sheep. She spent about $80,000 of her own money and ended up going bust because she'd be -- the Department of Agriculture, in an agricultural-friendly state, couldn't accommodate her as an artisanal producer as an example. In order to have the product inspected, the inspectors would call her and tell her, we'll be there at, you know, two o'clock in the afternoon tomorrow…

  • 12:33:17

    NNAMDIAllan, we're running out of time fairly quickly, could you get to your question please.

  • 12:33:21

    ALLANYeah it's just that it's yeah, you're right that one size doesn't fit all but it's also virtually -- in my experience, the governmental agencies just don't seem to work to be able to deal with artisanal producers, and that's not right either. And I'm off the air.

  • 12:33:37

    NNAMDIThank you very much, Allan.

  • 12:33:39

    DEWAALYou know, your caller has an excellent point. And also one of your other callers raised the issue of raw milk and how would it impact those. The bottom line is that if food's coming to the market, it's got to be safe. And that means that the producers involved have to actually know what the risks are associated with their products. Many of us believe that there is no way you can make raw milk, as a liquid beverage, safe. It's just -- there is no system for doing that. Raw-milk cheeses, however, have been produced for probably centuries, but there is a risk, especially of Listeria. So we -- it's critically important that the people who are making those artisanal cheeses understand the risks and that they have a plan to address it in their system. They will need to get through state regulation today. That's already part of what state officials do. So this law, however, does raise this point of how do we really interact better on the food safety side between the government and the producers? Nobody is asking for people to go in, you know, as a big police force or enforcer. We have to understand, everybody has to understand the same science, and the government needs to provide the training and understanding that will allow these people to produce these wonderful cheeses safely.

  • 12:35:19

    NNAMDICaroline Smith DeWaal is director of food safety with the Center for Science in the Public Interest. Thank you so much for joining us. Ellyn Ferguson is an agriculture reporter with Congressional Quarterly. Ellyn, is it anybody's guess as to whether this bill will actually come up for debate after the November elections, or is it likely or possible or probable?

  • 12:35:39

    FERGUSONWell, it's probably more likely at this point since the majority leader, Harry Reid, filed closure motion, which moves it from what has been sort of his informal list of priority bills to a vote on whether to proceed to it. You need 60 votes to do that.

  • 12:35:58


  • 12:35:58

    FERGUSONAnd so, we'll get a better sense of where the support is. And I just wanted to add something for the caller who wanted to see the bill. Reading legislative text is not the most informative thing. I would direct you to the Congressional Budget Office website, Put in for your search, agent food safety. They do -- they have done kind of analysis and synopsis of each of the bills, the House and the Senate bill. It's supposed to be a cost estimate, but they also tell you what the specific provisions will do, and that will help you a lot more than reading the text.

  • 12:36:35

    NNAMDIHaving covered the Congress as a broadcast reporter myself, I can tell you it can be very dull (laugh) actually trying to read legislation. We're gonna take a short break. When we come back, we'll have a conversation about an archaeological dig in this area and what it tells about the War of 1812. I'm Kojo Nnamdi.

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