Washington Insider -- Friday

Food Regulation Transparency

Here’s a quick monitor of Washington farm and trade policy issues from DTN’s well-placed observer.

USDA's Perdue Says Pace of NAFTA Talks Disappointing

The slow pace of talks in the renegotiation of NAFTA is an area where USDA Secretary Sonny Perdue is "somewhat disappointed," the USDA chief told a Washington International Trade Association event Wednesday.

Despite that slight disappointment, Perdue said that will likely change as the Office of the U.S. Trade Representative (USTR) to begin putting agricultural proposals on the table during the next round of talks October 11-15 in Washington. "Honestly, we've been somewhat disappointed in the first three rounds, but we think this is the way these things get going," Perdue stated. "If you've ever watched a boxing match, they circle one another for a while, and I think we've been circling."

Priorities in the NAFTA talks are issues with Canada over dairy and poultry, Perdue said, adding he thinks the dairy issues will be discussed during the upcoming fourth round of talks. Perdue reiterated the dairy issues with Canada are “very unfair” to the U.S.

US, South Korea Agree On Need to Amend KORUS

A common understanding has been reached between the U.S. and South Korea on the need to amend the five-year-old U.S.-Korea Free Trade Agreement (KORUS) trade agreement in order to increase benefits for both countries, the South Korean government said after a meeting Wednesday.

While agreeing in a meeting between the top two trade officials from both countries on the need to amend the deal, there was no suggestion of what parts of the deal they want to address. Of note, the countries are aiming to change the deal rather than start from scratch with a complete renegotiation.

Seoul said it will begin consultations with its legislature and stakeholders — including an economic assessment and public hearings — to fully engage in potentially amending the agreement. U.S. Trade Representative (USTR) Robert Lighthizer said there will be "intensified engagement" with South Korea to amend the pact. A USTR spokesperson said the two sides anticipate further discussions and/or meetings to be scheduled in the coming weeks.

Seoul had originally taken the position that they would "not agree to the unilateral proposal" to amend the deal until they first examined the cause of the trade imbalance. President Donald Trump wants to close the trade deficit largely fueled by South Korea's exports of cars and mobile phones.

But the agreement has big defenders in Congress, including those from agricultural states.

Washington Insider: Food Regulation Transparency

Bill Marler is a well-known personal injury lawyer and food safety advocate, who also is the managing partner of Marler Clark, a Seattle, Washington, based law firm that specializes in foodborne illness cases. This week he posted an OpEd piece on Food Safety News that criticizes FDA policies concerning contaminated foods.

Last March 7, 2017, The SoyNut Butter Company recalled all varieties of I.M. Healthy SoyNut Butters and all varieties of I.M. Healthy Granola products. This after poisoning more than 30 people–mostly kids–several that suffered from acute kidney failure.

The recall notice, carried on the FDA website did not mention where the tainted product was sold. Nearly six months later, Food Safety News reported in September that "Amazon.com was still selling I.M. Healthy soy nut butter." Then on Sept. 26 a friend of a client whose son nearly died from consuming the soy nut butter found the product on "Close Out" at Lucky's Supermarket, a subsidiary of Albertsons, in Redwood City, California.

So, why does the FDA not release the names of retailers during a recall and/or an outbreak, Marler asks. Caitlin Dewey of The Washington Post asked the same question in March of this year: why the FDA hides the names of grocery stores that sell contaminated food. “I reread it today and it still makes my head hurt,” Marler said.

The Post said the reason FDA does not specify which stores, centers or schools offered recalled products is concern “that would violate its interpretation of an obscure trade secret rule.”

This interpretation differs from that of other agencies in the federal food safety system, Marler says. The FDA’s current recall process has been in effect for years, though the agency did gain more recall authority under the FDA Food Safety Modernization Act (FSMA) of 2011. It is, for the most part, a voluntary system—which means there’s some variance in how quickly recalls happen.

When a company does issue a recall, it has wide latitude over the amount of information it shares which may not be made public. Companies are not required to reveal where the product was sold — whether to a store, a school, a restaurant or another manufacturer that put it in other products.

The recall for SoyNut Butter, for instance, says that “products were distributed in several states and may have been purchased in stores or through mail order. They were also distributed to childcare centers and schools in several states.

FDA told the Washington Post earlier that it believes its disclosure measures are sufficient and blamed the lack of downstream recall information on federal disclosure rules that limit the sort of information that must be released to the public. Peter Cassell, a spokesman for the FDA, declined to make an agency lawyer available for comment or explain how the FDA had arrived at its definitions.” But it’s probably worth noting that when another agency considered similar precedents, it came to different conclusions, Marler wrote.

In the early 2000s, USDA’s Food Safety and Inspection Service (FSIS) decided to revisit its own interpretation of the trade secrets rule. During a lengthy comments period, industry groups concerned with protecting their distribution lists from competitors faced off against consumer advocates. In 2008, after several years of debate, FSIS’s final rule concluded that it would “not cause substantial harm to the competitive position of any business” to disclose retailer names.

Today, when USDA’s FSIS issues a Class I recall—for products that seem “reasonably” likely to cause health problems – it also issues a list of all the retail locations that have, or have had, the product. During last month’s massive cheese recall, for instance, FSIS published a list of every Safeway, Albertsons and Pak ’n’ Save that sold Taylor Farms salads containing Sargento pepperjack. But because FDA regulates the cheese itself, there was no such list of stores that sold the cheese outside salads.

Marler notes that the man who led the effort to reform FSIS’s trade secrets rule “has his own suspicions” as to why the FDA hasn’t followed his lead.

Richard Raymond, who was the undersecretary of agriculture for food safety under President George W. Bush, says that the fiercest opposition to the change came from the food industry. Raymond, who had been the chief medical officer in his home state of Nebraska found himself surprised by the level of resistance.

“They were scared to death it would hurt their business,” Raymond said. “The retail stores want to protect their brand. … When you ask why FDA hasn’t done it, I suspect they don’t want that fight themselves.”

This is not a new fight, but neither is the problem well known. However, the number of recent food-based outbreaks has been growing as internet sales and other less traditional supply channels grow in importance. This case certainly seems to be a black mark for FDA and one that could sharply increase consumer attention to the effectiveness of food safety efforts, Washington Insider believes.

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