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Future Directions and Summary

This page suggests future trends/directions for food law and summarizes key points about food safety practices.

 

Trends and Key Points

Consumers and governments will continue to expect that each business in the food industry will do what it can to reduce the risk of unsafe food.

  • Consumer expectations will impact food businesses; food businesses will not be able to ignore consumer expectations. Consumers demonstrate their expectations by their purchases, their lobbying for public policy, and through litigation, such as product liability litigation.
  • Food businesses will be expected to adopt pro-active food safety practices (that is, work to resolve a situation before it becomes a problem), rather than only responding after a problem has arisen (e.g., someone has become ill).
  • Food businesses will be expected to assess their own (production, processing, handling, etc) practices, and identify and adopt strategies appropriate for their business to reduce the risk of unsafe food.  Business will have individualized strategies to meet the unique needs of their product and practices.  Uniform business strategies will not be mandated by government; there is too variation among food businesses and food products.  Instead, the government requirement will focus on assuring that each business follows a procedure (e.g., HACCP) which effectively assesses the business practices and leads the business to develop and implement specific strategies that effectively reduce the risk of unsafe food.
  • All sectors of the food industry will be held to the standard of "self-assessment and developing/implementing practices to reduce the risk of unsafe food", whether the business is part of the agricultural production sector, the food processing sector, or the retail/food service sector.  Documenting their assessment and practices will be a component of the expected "standard".
  • The role of government will be to "cause" food businesses (through regulation and education) to meet the standard of "self-assessment and developing/implementing practices to reduce the risk of unsafe food".  Restated, the role of government will be to assure food businesses assume the responsibility of "self-assessment and developing/implementing practices to reduce the risk of unsafe food".
  • In the future, the food industry is as likely to impose as many new expectations on itself as government may impose.  For example, retailers (e.g., Walmart and McDonalds) believe their customers expect the retailers to take an active role in minimizing the risk of unsafe food.  Accordingly, these retailers are setting forth standards (often via contracts) that their food suppliers must meet. These food suppliers, in turn, set forth expectations on food processors, and the processors set expectations for manufacturers of food ingredients.  These manufacturers set forth expectations on the firms that provide the agricultural commodities.  Consequently, the industry is setting standards on itself.  Some of these standards may precede government standards; sometimes the industry standards will accelerate the adoption of emerging government standards.  Documentation of business practices that contractual and regulatory standards are being met and the sharing of that documentation also will advance as part of the industry expectations.  In summary, future expectations throughout the food industry will reflect a combination of government standards and industry expectations.

 

  • Consequences for firms that fail to provide food products and services that are free of adulteration or misbranding will be 1) the need to recall product from the market, 2) contractual liability to other food businesses, 3) tort/product liability to injured consumers, 4) damage to the business reputation of the recalling firm, 5) fewer opportunities to conduct business with other food firms, 6) government regulatory agencies blocking the sale, use and movement of the firm's products, and 7) criminal charges for business leaders who knew their product or process was unsafe but did not take appropriate action to protect consumers.

 

The food industry will continue to be a global industry.  There will be expectations for nations to harmonize their standards.

  • The food industry is establishing non-government, industry-based, global associations that specify standards food firms are expected to meet; firms that are unable to document that they are meeting these industry standards will have a challenging time to sell their product to other food businesses that intend to further process and distribute the food product.  Third-party firms will arise to offer auditing services for food businesses so each food business does not need to directly audit their suppliers.  These third-party firms will be certified by government and/or industry associations in order to qualify to offer these third-party audits.

 

Interests in localizing the food industry may continue to expand, but these businesses will be held to the same expectations/standard as food businesses that move and commingle foods from geographically-dispersed sources.

 

Food that is reasonably believed to be adulterated or misbranded will be removed from consumers.  The government and industry will not wait until a problem is confirmed to remove the food.  The philosophy is to err on the side of caution and remove any suspect food from consumers, rather than wait to confirm a problem during which time additional consumers may be injured from continued consumption.

  • Businesses are responsible for establishing that their food is not adulterated or misbranded.  It is not the responsibility of government to establish that food is adulterated or misbranded.
  • Food businesses will be responsible for explicitly assessing the practices and products of firms that supply agricultural commodities and food ingredients to food businesses for further processing.  Each food business will be expected to take an active role in assuring that the commodities and ingredients it receives from suppliers are safe to use for food; this expectation has been incorporated into U.S. federal law as the concept of "supplier verification."

 

Additional points

  • Recordkeeping/documentation are business strategies to help assure that production, handling, processing, etc practices are being assessed.  The records also can be used to help establish that the food is not adulterated and misbranded, and therefore it can be placed back into the food system and moved onto consumers.
  • Traceability is the idea that specific records -- such as "immediate previous sources and the immediate subsequent recipients" -- should be maintained by food businesses to help identify associated food.  These records will be especially important after a food safety issue has been recognized and the priority is to immediately identify, locate and remove all other suspect food from the food system.
    • Records that "trace" the movement of food may be used by an injured party to establish the legal responsibility of the party who caused the food to be adulterated or misbranded.  Similarly, food businesses should understand that records of how they handled food while under their control and that the food was safe when it left their control can be used by that food business to establish a defense against legal responsibility/liability if a problem with the food is subsequently identified.
    • These safe-handling practices and documentation of safe practices will be expected of all firms handling food, not just processors and producers.  Firms that temporarily hold food, such as food storage or food transportation firms will need to meet these government and industry expectations.
  • The food industry and associated government agencies will use information technology to rapidly (instantly) communicate about a suspected food safety product.  The communication will be among the medical community, the food business, regulatory agencies, and others; and if necessary, information will be communicated to consumers and businesses that can help remove the food from the food system.
  • Consumers will continued to be educated about food safety and food nutrition; they also should be provided information about specific food products, so they can then decide what food to consume.  Likewise, consumers need to be informed of any suspected risk so they can immediately take steps to reduce their risks.
    • There will be arguments for practices or policies that take away consumer discretion and replace it with government decisions (for example, see http://www.chicagotribune.com/news/education/ct-met-school-lunch-restrictions-041120110410,0,2614451,full.story).  "Chicago school bans some lunches brought from home -- To encourage healthful eating, Chicago school doesn't allow kids to bring lunches or certain snacks from home — and some parents, and many students, aren't fans of the policy."
    • This is an example of a policy issue (i.e., what should the law be), rather than a legal issue (i.e., what is the current law).  The outcome of such a political debate could shift the practice from influencing consumer behavior through education and information to mandating consumer behavior through regulation.  It will be interesting to see in the coming decades whether society will reduce the freedom of individual consumers.
  • Education/training for workers in the food industry will be instrumental in achieving practices that reduce the risk of unsafe food.
  • Leadership within food businesses will be the foundation for establishing a workplace culture of practices that prevent adulterated and misbranced foods.

 

 

Email David.Saxowsky@ndsu.edu

This material is intended for educational purposes only. It is not a substitute for competent legal counsel. Seek appropriate professional advice for answers to your specific questions.

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