Food Safety Modernization Act Creeping Forward
To get an idea of the glacial speed at which the federal government sometimes acts, one needs to look no further than the Food Safety Modernization Act (FSMA), which was passed into law in January 2011. But, in defense of the slow pace of the rollout of the law, it is the largest overhaul in food safety regulations in more than 70 years, and some delays were forced as agricultural stakeholders fought for more practical, flexible, and effective interpretations of the law.
The Trump Effect
With the Final Produce Safety Rule completed and compliance dates in place, President Donald Trump’s freeze on new regulations raised questions about what impacts it might have on the FSMA rollout. The freeze noted that pending federal regulations must now get a second look and be approved before enforcement.
Some clarity to where FSMA stands came in the form of a “Covington Alert.” The alerts are issued by DC-based law firm Covington, which specializes in government regulations. The memo provided some insights on how food safety rules might be impacted by the changing of administrations.
In part, the memo read: “A regulatory freeze upon a change in administration is not uncommon; President Obama issued a nearly identical memorandum in 2009. While this is one step toward the Trump Administration managing new and pending federal regulation, the regulatory freeze is limited in scope. Specifically, it does not direct federal agencies to stop working on new regulations — it does not impact comment periods for dockets that are currently open, nor does it prevent agencies from considering comments already submitted. It also does not impact regulations that have already taken effect.
“From a food regulatory perspective, this means that the regulatory freeze will not impact the regulations FDA issued under the Food Safety Modernization Act in 2015 and 2016, nor will it impact the Nutrition Facts Label final rule, as the effective date for all of those regulations has already passed. The regulatory freeze will only impact any regulations that FDA or USDA plan to send to the Office of the Federal Register in the next few months (including any currently under review at the Office of Information and Regulatory Affairs), as well as any regulations that were recently published but not yet effective, unless those regulations are subject to statutory or judicial deadlines.”
So, in effect, Trump’s public announcements on freezing regulations will have no real impact on FSMA’s Produce Safety Rule, but may in fact affect rules still unpublished. In addition, future funding of the agencies directed to regulate FSMA could potentially impact how the law is enforced.