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Balancing Priorities: Why Is Food Still Making Us Sick In The 21st Century

Jim Prevor’s Perishable Pundit, April 11, 2013

The Association of Health Care Journalists recently held a conference and the agenda was extensive. Of particular interest to the food industry was a seminar held on March 16, 2013:

Why is food still making us sick in the 21st century?

• Will Daniels, senior vice president, operations and organic integrity, Earthbound Farm
• Bill D. Marler, managing partner, Marler Clark
• Michael R. Taylor, J.D., deputy commissioner for foods, U.S. Food and Drug Administration
• Moderator: Deborah Schoch, senior writer, CHCF Center for Health Reporting

It was an interesting question to pose, along the similar lines that say, “If we can put a man on the moon, why can’t we… ” …fill in “eliminate poverty,” “cure cancer,” or, yes, make food safe.

We weren’t there to hear the discussion. Although Bill Marler posted his slides, which you can read here. It was, however, an illustrious panel — although one notably short of anyone representing conventional agriculture — so we are certain they raised interesting ideas. We would like to weigh in with a few thoughts of our own:

So why do we still have foodborne illness? Such problems exist for one of two reasons… either A) We don’t know how to prevent such illnesses, or B) We do know how but choose not to do so.

Recognizing these two reasons leads to several possible explanations that could answer the question and that point to various policy responses:

1)  As a society, we know how to reduce or eliminate foodborne illness but choose not to do so.

We probably do not know how to eliminate foodborne illness, but we certainly know how to reduce it substantially. Yet the public policy response — whether under Democrat or Republican leadership — has never been to do “everything possible” to eliminate the risk of foodborne illness.

Since nobody wants foodborne illness, the obvious question is “Why can’t we do everything possible to eliminate all risks?” The obvious answer is that steps that can reduce foodborne illness all cost money, and although reducing foodborne illness is an important value, it is not the only value. We want inexpensive availability of fresh foods… we want to let farmers earn a living… many consumers want to avoid eating irradiated food… we want a lot of things other than food safety.

As a result we pick a happy public policy medium, impose some regulations that function as a legal minimum standard but do not attempt to prioritize the problem of food safety over all other issues. Consequently, we accept that some people will get sick or even die as a consequence of where we set that minimum.

This is not such an unusual determination. Think about automobiles. We have the technical ability to build cars that would protect the driver and passengers in two vehicles if they crashed into each other head on at 80 miles per hour. Yet the law requires no such safety standard. This is because the same structure that would keep us safe would add cost and weight to cars. They would be more expensive to both buy and fuel, so we create minimum standards and accept that people will be injured and die in car accidents.

Viewed in this perspective, the social role of plaintiff’s lawyers such as Bill Marler in food safety — or any of a roster of “ambulance chasers” when it comes to car accidents — is to handle the “collateral damage” from the societal decision to draw the line on food safety or automobile safety at some point less than zero tolerance.

In other words, people still get sick from food for the same reasons they still die in car crashes: Other societal values trump the idea of obtaining absolute safety. From this perspective, there is not so much a problem as a choice that has been made. Continued debate is simply over whether we should reset the line.

2)  Private parties, such as food producers, do know how to avoid foodborne illness, or at least reduce it, but are unwilling to act due to the incentives established in public policy.

Private parties act in response to incentives and, absent a law compelling certain actions, they respond to the incentives that markets provide.

Ironically, government regulation of food safety may actually make food less safe. When the government reassures people it has set, and enforces, standards to ensure all food is safe, it makes it difficult for marketers of food to gain much business or gain profit premiums by promoting their food as safer.

In other words, if the government issued a statement that it was closing down its food safety efforts and, in the future, it was a caveat emptor world, we would expect that marketers would respond with all kinds of efforts because consumers would respond with heightened concern. There would be a rise in private certification efforts, and one could imagine a restaurant chain promoting that it only serves irradiated hamburger, etc.

Of course, the effect of making the marketing of food safety viable would have reverberations up and down the supply chain. On one end, one would expect money to pour into R&D efforts to find ways to make food safer as there would be a ready and competitive market for such technologies. On the other end, one would expect consumers to become far less complacent.

So put simply, government officials going around saying that the government’s regulatory apparatus ensures safe food makes consumers complacent and depresses the return to be garnered from investing in food safety.

3)   The private sector knows how to make food safer, but legal standards of liability are retarding progress.

In America, the legal standard is that the “producer” of the food has primary legal liability for any food safety problem. So it is the grower/shipper or processor that gets sued, not the retailer. Retailers can be liable but only contingently — if the producer is unable to pay the judgment. This has led the most universal food safety measure demanded by retailers to be a requirement that vendors carry liability insurance.

Making producers primarily liable seems to make sense. After all, the producer has the ability to most directly impact food safety. It turns out, however, that where food safety is concerned, this is only partially true. Many of the steps we can take to make food safer are not amenable to go/no-go decisions. We know we need to test water, but how frequently? We know we need traps — but at what interval? As a practical matter, producers can only do as much of this as retailers are willing to pay for.

Although, of course, retailers don’t want food safety problems and have various standards in place to make them less likely, retailers have trouble incenting their buyers in a way that encourages them to select vendors that go beyond whatever the retailer may have established as its food safety standard. So if a retailer has decided it will require a USDA GAP audit for a certain product, few buyers have a reason to pay extra because a producer has a more rigorous audit. In fact, to the best of our knowledge, nobody has changed their key performance indicators to focus on food safety — although all retailers claim that it is their very top priority.

Now imagine a world where retailers were primarily liable for food safety problems. Or even a world in which retailers were obligated to exercise due diligence or they could be held liable. Imagine a world in which it was illegal to shift the liability to vendors through requirements for indemnification agreements. All of a sudden, this means the retailer’s stock price could crash when there is a food safety problem as the market judges the impact on the chain. All of a sudden, retailers would ramp up food safety efforts. They just wouldn’t deal with anyone but the top vendors in the game.

Right now, the liability laws incent retailers to require vendors to have liability insurance. Another legal regimen could actually incent retailers to procure to different standards. This may not be desirable because the cost might outweigh the benefit, but is an explanation for why food is not safer.

4)   We may not know how to make food safe.

Much about food safety is still a mystery. Food is enormously safe in the United States, so serious food safety outbreaks are really “black swan” events that happen at unpredictable times for unpredictable reasons. Although after the fact we can go back in and hypothesize about what would have prevented a particular outbreak, we are rarely certain. Even if we do identify a particular reason, it is often difficult to articulate a rule that would prevent such a problem from occurring again.

Think about the Jensen cantaloupe situation where it is hypothesized that a used piece of equipment that had been adapted for use with cantaloupes might have been the source of the problem. Even if that is so, which is far from certain, what rule do we devise from that? That nobody can buy used equipment? That nobody can repurpose things from one crop to another? These are big rules to make based on one data point.

The Center for Produce Safety has funded much research but the budget is still very small. In any case, most research raises more questions than answers, and we still don’t know fundamentals such as the migration rate of e. coli.

Possibly the issue is that gaining knowledge about food safety is very difficult, but it is also true that it is really not the top priority for many. If you look at government and charitable expenditures overall, much more money is spent on research to cure cancer or heart disease or practically any disease than it is to make food safer. In the private sector, research continues but, once again, on a relatively small scale.

A big part of this may be, once again, a result of the government’s decision to regulate and thus claim that all food is safe. If this situation didn’t exist, there would be much more marketing around food safety, and the desire to market would create a demand for the latest food safety advances and a willingness to pay premium prices to get exclusives on this technology. Very possibly, this race to success would entice lots more spending on food safety research and thus lead to safer food.


Unfortunately, the country doesn’t get to have a real conversation about food safety. People are petrified to speak up lest they be seen as “against food safety,” but the truth is that food is so safe that it probably makes sense to spend resources elsewhere and make roads safer or swimming pools safer.

On average, the number of people who die each day from foodborne illness related to fresh produce in the US is close to zero.

In contrast, we can confirm that about ten people die each day in the US from non-boating related accidental drowning. The vast majority of these deaths could probably be prevented if people knew how to swim. Society has to make choices about how to allocate scarce resources.

Maybe the real reason why in the 21st century food still sometimes makes us sick is that there are plenty of other tragedies in the 21st century and food safety is thus one item and often not the highest priority on a very long list of problems to be solved.

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