Will Donald Trump change FSMA?

Donald Trump recently surprised not only the skeptics, but his ardent supporters (and quite possibly, even himself) by winning the recent US presidential election.

While there is a significant amount of people concerned with what the future holds with Trump leading the nation, it’s no surprise that companies within the food industry are questioning what a Trump presidency will mean for FSMA, and food safety in general for that matter.

Companies within the food industry are questioning what a Trump presidency will mean for FSMA and food safety in general

While the results of the election seem to be a shocker to many, the fact is, this is not the first to be controversial. Many years ago I was taught a simple philosophy on the subject of mixing politics and work. It consists of 3 principled steps, and I’m happy to share them with you free of charge:

1. Whatever you do, don’t ever mix politics and work.
2. Wait until the next election cycle, and then forget about mixing politics and work.
3. Repeat step 1.

With this advice in mind, this blog will not discuss the pros and cons associated with President Elect Donald Trump. I’ll leave that up to the pundits who enjoy squabbling on cable news shows.

Instead, like all companies within the food industry, it’s important to understand whether a Trump administration will actually be good or bad for the food industry as a whole, and furthermore, what does a Trump administration mean for FSMA?

By now, larger companies should be deeply involved in getting their systems aligned with the FSMA requirements, as the compliance inspections are well underway.

By now, larger companies should be deeply involved in getting their systems aligned with FSMA requirements

Smaller firms, also feeling the stress of getting their systems in compliance, are likely facing the question of whether it would be better to take a step back and adopt a “let’s wait and see” approach.

Smaller firms are likely facing the question of whether it would be better to take a step back and adopt a ‘wait and see’ approach

Lastly, depending on your source for information, we’ve learned that the internet is a hotbed of fake news on both sides of the aisle. For the sake of staying non-partisan, and sticking to the 3 steps I pointed out previously, we’ll go straight to the source for information on each point discussed.

The facts as we know them.

During the campaign, Trump was not shy regarding his feelings about the FDA, even referring to them as the “food police” at one stage.

This campaign ran on a basis of “lower taxes, less government”, which envisioned an overhaul of government structure.

Among the many promises in his plan to reduce the size of the government are his plans of significant regulatory reform:

Require each federal agency to prepare a list of all of the regulations they impose on American business, and rank them from most critical to health and safety to least critical. Least critical regulations will receive priority consideration for repeal.

In addition to this, is his plan to defund at least part, if not most, of the Environmental Protection Agency, which will directly impact FSMA and food safety in general.

To the casual observer, it might seem like a stretch of the imagination to think that defunding the EPA could have any effect on food safety. However, the EPA provides critical oversight, such as the Clean Water Act and the Clean Air Act, which directly impact sectors within the food industry, from the chemicals used in pesticide application on farms to the water needed for food production.

The EPA provides critical oversight … which directly impact sectors within the food industry

There are also plans for other areas which could have an effect on the food industry, and in turn, food safety, such as those intended for Trade Reform and Immigration.

Of course, each of these points is currently speculative. However, all signs are pointing towards a dramatic change envisioned for governmental oversight, which is in favor of a return to free-market economics.

What could it mean?

Now that we have acknowledged what is at stake, the question that needs to be asked is whether there is any legitimacy to these plans.

Firstly, it’s very fair to say that at this point, these are all the promises and musings of a presidential candidate trying to get elected. In other words, only time will tell whether his plans are anything more than big talk.

Each plan is intended to revitalize the economy in its own way and potentially means more money is available for companies to improve their systems or invest in quality.

Each plan is intended to revitalize the economy in its own way and potentially means more money is available for companies to improve their systems

However, removing or restricting governmental oversight means that the onus of compliance shifts entirely back to the manufacturers.

Consumers will have to purchase on the assumption that Companies are acting in good faith.

Consumers will have to purchase on the assumption that Companies are acting in good faith

The question then is whether manufacturers will continue to produce high quality and safe-to-eat products as they are currently doing so, or cut back in practices and hope that product quality does not suffer as a result.

Consumers may have to be more diligent than ever that what they are eating is safe to do so.

 Can (and will) Donald Trump abolish FSMA?

The answer is, most likely, no.

Certainly, Trump will be able to make some changes that will impact how FSMA is administered. However, his plan necessitates asking agencies to list the regulations which they have imposed on American industry, and to rank them in order of priority to public health and safety.

FSMA has already proven significant during its rollout in improving the integrity of food safety systems across the food industry.

It is difficult to imagine the FDA ranking FSMA as anything less than critical, which means it is unlikely to be adversely affected.

It is difficult to imagine the FDA ranking FSMA as anything less than critical, which means it is unlikely to be adversely affected

In addition to this, FSMA has now become the “law of the land”. In order for it to be rescinded, it would literally take an act of congress, and the FDA is likely not going to walk away quietly into the night.

The Supreme Court case “FCC v. Fox” has set a precedent that even if the FDA were to change direction and push for FSMA to be rescinded, it would have to defend the new rule in the same way it would defend the original rule.

As industry is now reliant on FSMA to give confidence to consumers, as well as having been proved necessary through a strong scientific record, there is a legal standard established for why FSMA cannot be easily overturned.

What is more likely to occur is that the FDA will be starved by cutting its resources and potentially shifted away from monitoring and enforcing to different functions.

What is more likely to occur, is that the FDA will be starved by cutting its resources and potentially shifted away from monitoring and enforcing to different functions

All of this is in addition to the Reorganization Act, which essentially restricts a new president from eliminating agencies altogether.

These considerations show that short of shifting the heavens and the earth, as well as completely eliminating the fail-safes in law and government, FSMA will be a mainstay in the American political and industrial world from here on.

 What affect will this have outside the USA?

Repeatedly in Donald Trump’s platform was the theme of “Americanism, not globalism”, as he vowed to put “America First”.

With just a few weeks remaining before he takes the oath of office, he has used his influence to keep a major company from relocating a factory outside the United States, keeping hundreds of jobs firmly within the country’s borders.

So, what does this mean for food companies outside the USA?

His actions could indicate he may adopt a more economic “Protectionist” position when it comes to importing goods into the USA.

This could have a major impact on Foreign Suppliers, since FSMA, and specifically the FSVP Rule, could be seen as the perfect tool through which imports could be restricted (e.g., China).

The FSVP Rule could be the perfect tool through which imports could be restricted

Applying the FSVP Rule to the letter of the law could make any protectionist policy more realizable.
I am not saying this will be the case, but some people in the market could view it in this way, and certainly, Foreign Suppliers may need to take account of this when it comes to interpreting the law and ensuring they are fully compliant.

The last thing a foreign supplier would want is to have their goods impounded at the point of entry due to the lack of some piece of documentation that they overlooked or were not aware of.

This already happens before the introduction of FSMA, so it is not unreasonable to say it might get even more difficult.

What next?

No matter what, the future is going to be fascinating to watch unfold and I, for one, am very excited to be alive during such a significant time in history.

At this point, there is only supposition and educated guesses to comment on. It will be interesting to look backwards in 6, 12, 24, 36, and especially 48 months, to see what promises were kept and what impacts were actually made.

Regardless, my advice to the food industry remains unchanged.

The changes proposed in FSMA are so significant, and the cost of non-compliance is so great, that it is simply not worth the gamble to wait for the latest developments before taking action.

The cost of non-compliance is so great, that it is simply not worth the gamble to wait for the latest developments before taking action

When the FDA inspector shows up onsite, they aren’t going to entertain the notion that your company decided not to make any improvements just because incorrect assumptions were made!

If you are a foreign supplier adopting a “wait and see” policy, only to find that your product goes out of shelf-life while impounded, could be commercially catastrophic.

In previous blogs, we’ve discussed the changes, and also provided compliance dates for different sized companies and sectors in regards to FSMA.

If you haven’t started the journey towards FSMA compliance and improving your systems yet, there’s no greater time to start than now.

It doesn’t matter who is sitting in the White House; the public has the right to safe food, and it shouldn’t take legislation to get that.