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Food Safety News

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Letter From The Editor

Once upon a time, the U.S. Department of Labor was off and running with a new, popular workplace safety law to implement.  Then they ran into Bill Barlow in Pocatello, ID.

Or, as the story was told about three years later at the U.S. Supreme Court:

“On the morning of September 11, 1975, an OSHA inspector entered the customer service area of Barlow’s, Inc., an electrical and plumbing installation business located in Pocatello, Idaho.

“The president and general manager, Ferrol G. “Bill” Barlow, was on hand; and the OSHA inspector, after showing his credentials, informed Mr. Barlow that he wished to conduct a search of the working areas of the business. Mr. Barlow inquired whether any complaint had been received about his company.

“The inspector answered no, but that Barlow’s, Inc., had simply turned up in the agency’s selection process. The inspector again asked to enter the nonpublic area of the business; Mr. Barlow’s response was to inquire whether the inspector had a search warrant. The inspector had none. Thereupon, Mr. Barlow refused the inspector admission to the employee area of his business. He said he was relying on his rights as guaranteed by the Fourth Amendment of the United States Constitution.”

Bill Barlow was one tough character.  People thought he was anti-OSHA and anti-union, but he was actually just against warrantless searches and he was a member of the International Brotherhood of Electrical Workers.

Jimmy Carter, however, wanted OSHA implemented his way with warrantless searches and he sent his Labor Secretary Ray Marshall into the federal courts to fight the Idaho contractor.   And like he did so often as President, Jimmy Carter lost.  For on May 23, 1978 the U.S. Supreme Court ruled in his favor.

I could not help but think about that story about OSHA’s past as we look ahead to the day when the Food and Drug Administration (FDA) will be charged with implementing a new food safety system.

Food Safety News is giving as much attention as possible to the reform of the federal food safety system.

Although Congress makes up its schedule as it goes, we can say that its roughly halftime in the game.  The House has adopted its law.  Another version awaits action on the Senate floor, but that probably won’t come until 2010.

When that happens, the next step will be a House-Senate conference committee to agree on a bill the President will sign.  If food safety advocates are lucky, it could happen by spring.

That’s why the questions some are asking about how this new law will be implemented are not premature.  

Thumbnail image for Food Safety Modernization Act Timeline.jpgAlex Ferguson, one of Seattle University’s newly minted lawyers working at Marler Clark, was spot on last week in his commentary, “S. 510:  Laws Without Effective Timelines?.”  The chart that accompanied his survey of S. 510 (right) raises questions about what elements of the bill come with a timeline and which one’s don’t.

Alex was bemoaning how little of the Senate bill is written in a clear straightforward manner, and wondering how this new system is actually going to work.

Merely snapping your figures does not change “Command and Control” regulatory schemes.   As Alex notes, whatever ends up coming forth from Congress must be processed through the federal administrative procedures machinery.

In my opinion, if President Obama serves two terms and if the FDA could implement the food safety system before he leaves office–it would be a marvelous accomplishment.  I truly believe getting it implemented will take five or six years.

Command and control regulatory systems involve so many actions (millions) by so many players (thousands) that they can easily get bogged down, and sometimes grind to a halt.

I worked to reform the building and land use system in one of the biggest and fastest growing counties in the United States a few years ago.

One arm of the system was actually requiring the installation of millions of dollars worth of huge underground pipes big enough to drive buses in, even though the actual end decision-maker had already determined it would never use the structures.  It was insane.

The OSHA story illustrates how the courts always get to be last in using their chisels on these programs.  That comes after Congress, the federal administrative structure, and the Executive branch all do their thing.

Usually while the Courts churn, everybody waits.

Another example that comes to mind is a section of the Clean Water Act that gave the U.S. Army Corps of Engineers jurisdiction over land adjacent to the “navigateable waters of the United States.”  That has evolved through court decisions to include all land that gets some rain.

I bring this up not to spoil the day for food safety advocates, but merely to point out that implementation is the next step and that it’s just as important as getting Congress to act. 

For the record, Bill Barlow died in 1993.  I knew his son Rusty pretty well, and I don’t think he or any of the other brothers went into the food business.

© Food Safety News