Washington Insider -- Thursday

High Risk Food Designation

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

USTR Notifies Congress of Intent to Negotiate Trade Deals With UK, Japan And EU

Negotiations towards new trade agreements with Japan and the European Union (EU) could begin within months, while talks with the United Kingdom (UK) could start “as soon as it is ready” after it leaves the EU, U.S. Trade Representative (USTR) Robert Lighthizer told congressional leaders in letters sent this week.

“Under President Trump’s leadership, we will continue to expand U.S. trade and investment by negotiating trade agreements with Japan, the EU and the United Kingdom,” Lighthizer said in a release. “Today’s announcement is an important milestone in that process. We are committed to concluding these negotiations with timely and substantive results for American workers, farmers, ranchers, and businesses.”

Notification of Congress ahead of new trade negotiations is a requirement of Trade Promotion Authority (TPA) along with ongoing consultations with the legislative branch. The aim of such consultations is to "ensure that USTR develops negotiating positions with the benefit of Congress’ views," USTR noted. Meanwhile, "USTR will also publish notices in the Federal Register requesting the public’s input on the direction, focus and content of the trade negotiations."

Under TPA, USTR must also publish objectives for the negotiations at least 30 days before formal trade negotiations begin.

UK Will Not Bow to US Demands Over Regulatory Standards, Says Trade Secretary

The United Kingdom will have to accept that its commitment to keeping high food regulatory standards post-Brexit will impose limitations when it comes to doing future trade deals with countries such as the United States, UK Trade Secretary Liam Fox said this week.

Speaking at an Agricultural and Horticultural Development Board conference in London today (October 17), Fox was explicit in stating that should there be a clash between the UK’s regulatory requirements for agriculture and food, and the demands of trade partners like the U.S. for a more liberal stance as the price of a comprehensive trade agreement, then the U.S. would lose out.

“There have been a lot of reports lately, mostly on social media, that my Department has been planning to lower food and farming standards when negotiating Free Trade Agreements post-Brexit,” Fox told delegates at the ‘Exploring Agricultural Export Opportunities’ conference. “Well, today I am here in person, and let me tell you categorically that these reports are untrue.”

The Trade Secretary, an avowed Brexit enthusiast, has been under pressure for some time to say whether or not he would support U.S. demands for the UK to move away from EU regulations to facilitate imports in areas such as hormones on beef and chemically-treated poultrymeat.

But although Fox did not mention these controversies specifically, he did tell the conference that, from a food exporting point of view, it would be a big mistake to weaken UK standards.

Washington Insider: High Risk Food Designation

Food Safety News is reporting this week that a pair of San Francisco Bay area activist organizations are continuing to “pressure FDA about keeping the Food Safety Modernization Act (FSMA) rulemaking on a schedule,” and are again pushing for the agency to meet the Act’s mandates.

“FDA’s failure to implement FSMA’s critical food safety regulations by the statutory deadlines is an abdication of the agency’s fundamental responsibilities,” according to the civil complaint filed by The Center for Food Safety in San Francisco and the Center for Environmental Health in Oakland.

“Moreover, the agency’s unlawful withholding is putting millions of lives at continued risk from contracting foodborne illnesses, contrary to Congress’s commands. This lawsuit, therefore, seeks to require FDA to complete the high-risk food actions FSMA requires by Court-established deadlines.”

While the two groups filed complaint against FDA last week in US District Court for Northern California, the named defendants, Secretary of Health and Human Services Alex Azar and FDA Commissioner Scott Gottlieb, have not been served and government attorneys have yet to be assigned to the case, FSN said.

The pending litigation is similar to actions brought by the Center for Food Safety in 2012 after FDA missed several congressionally mandated deadlines for implementing FSMA regulations. That lawsuit was settled by the group and the federal government agreeing to deadlines that were included in a consent decree.

This time, the plaintiffs say FDA has failed to meet deadlines for classifying and designating “high risk” foods and to create record-keeping requirements for facilities handling those foods.

“The overarching purpose of these FSMA ‘high risk’ food provisions is to improve FDA’s food-tracing capabilities and expedite the recall process during an outbreak,” according to the complaint.

“In the years that FDA has failed to complete these requirements, devastating foodborne illness outbreaks have unfortunately continued and spread across the country, killing hundreds and hospitalizing thousands of Americans; as Congress intended, these foodborne illness outbreaks may have been prevented or lessened if these FSMA measures were in place."

The FSMA was signed into law in 2011 after it passed Congress in 2010. FSN notes that the FSMA’s purpose is to prevent foodborne illness outbreaks, not just react to them after they occur.

The federal Centers for Disease Control and Prevention estimates 47.8 million illnesses, 127,839 hospitalizations, and 3,037 deaths are experienced annually in the United States from foodborne diseases.

The plaintiffs claim the U.S. is experiencing a “continuing epidemic of foodborne illness” and documents outbreaks of incidents that have occurred under the FSMA. “At the time this complaint was written, there have already been nineteen multistate foodborne illness outbreaks just in 2018, the highest number of outbreaks since 2006,” it says.

The plaintiffs also argue that “the continued foodborne illness epidemic in our country shows that there is an urgent need to designate high-risk foods and establish their reporting requirements so that our government can rapidly and effectively respond to outbreaks,” said Ryan Talbott, Center for Food Safety staff attorney. “Congress required this to be done years ago, with good reason. As we have in the past, we will continue to hold FDA accountable to protect public health.”

Congress imposed a January 2012 deadline for FDA to designate high-risk foods and January 2013 for record keeping requirement for those facilities. Since 2013, the complaint says outbreaks of foodborne illnesses have “reached all fifty states, Washington DC and Puerto Rico.” When medical expenses and loss of productivity are taken into account, the plaintiffs say foodborne illnesses cost the economy over $93 billion annually.

FDA has not yet responded to the complaint. It has both conducted a pilot program on high-risk foods, and it invited public comments on a draft approach for the review and evaluation of data to designate high-risk foods. But FDA’s website is not clear on the current approach will be.

Food safety is always a highly visible priority for consumers, but the objectives of the FSMA are very expensive and difficult to achieve—and FDA has been quite timid in its implementation of the new law, skeptics charge. Certainly, attempts to designate “high risk” foods will be highly political and difficult — but also will be increasingly difficult to avoid. This is a high stakes challenge and should be watched closely by producers as it proceeds, Washington Inside believes.

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