Kelly M. Gay


The Food and Drug Administration (FDA) Food Safety Modernization Act (Modernization Act) was signed into law by President Barack Obama on January 4, 2011. The goal of the Act is to reform the United States’ food safety regulations that attempt to safeguard the American public from foodborne illness. However, America is also in the middle of a hunger crisis—millions of Americans are unable to provide enough food for themselves and their families due to a lack of financial resources. The Modernization Act has the potential to increase the cost of food production and pass this cost along to the public through increased food prices, creating an even more serious hunger crisis. Some of these increases in cost of production may stem from new produce-harvesting and food-import regulations, among other sources. Additionally, the Modernization Act completely ignores several key areas of food safety, including the opportunity to work with other government agencies to control contamination that spreads from other industries, enhance natural protections from contaminants, and maintain appropriate nutritional quality of food. Finally, the FDA, by its own admission, lacks funding to adequately implement the rules it creates. Poor implementation of even a perfect plan could mean imposition of adverse effects—including increased food prices—on the American public.

This Note argues that, while ensuring the safety of the food supply is vital to the health of the American people, the Modernization Act’s increased regulation has the potential to bring increased costs to the food industry, and that cost may not be worth the potentially small improvement in safety. It is understandable that food prices may have to increase to ensure a safer food supply, but the benefit gained by the American public in food safety must significantly outweigh the cost. Currently, it is not clear that will happen. As the rulemaking process progresses, to avoid detrimentally affecting the public and promoting further food insecurity, the FDA should conscientiously consider the effect that its rulemaking will have on the cost of food production.

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