JONATHAN COHN AUGUST 25, 2010
The next time you hear a conservative ranting about big government, ask him how he likes his eggs--plain or with a side of salmonella.
As you’ve probably heard by now, a massive egg recall is underway. A midwest producer shipped tainted eggs to supermarkets across the country, causing more than 1,300 known infections--with more, possibly, to come. The company ran the kind of factory farming operation that, experts have long warned, made salmonella infection more likely. Its owner had previously paid millions in fines for violating labor and safety regulations. But nobody had inspected the plant and, as a result, nobody knew about the contamination until after people started getting sick.
Outbreaks of food-borne illness are nothing new in modern America. Last year it was tainted peanut butter. Before that it was leaf spinach, hamburger meat, and jalapeno pepeprs. A new set of federal egg safety rules just went into effect, while a bipartisan bill to strengthen the Food and Drug Administration has passed the House and seems headed for approval in the Senate. Experts seem confident these steps will improve safety substantially. But consumer advocates and sympathetic officials have advocated such changes for more than a decade. That egg regulation has been under discussion since 1999, when the Clinton Administration first proposed it.
Why the long delay? And are we really doing better now?
The answers are long and complicated, so, for the moment, let me focus on just one element: The new standards for egg production. Based on what several sources, including former FDA officials, tell TNR, the saga of these standards seems like a case study in how conservative politics and conservative politicians have weakened federal regulation, exposing the public to greater health risks.
This is not a story that begins with the administration of George W. Bush. It begins, instead, with the administration of Ronald Reagan. Convinced that excessive regulation was stifling American innovation and imposing unnecessary costs on the public, Reagan's team changed the way government makes rules.
Prior to the 1980s, agencies like the FDA had authority to finalize regulations on their own. Reagan changed that, forcing agencies to submit all regulations to the Office of Management and Budget, which cast a more skeptical eye on anything that would require the government or business to spend more money. The regulatory process slowed down and, in many cases, the people in charge of it became more skittish.
Clinton didn’t share Reagan's antipathy to regulation. Prodded by consumer advocates and more liberal Democrats, his administration announced its intention to impose new safety requirements on the egg industry. But that happened in 1999, a year before Clinton left office. When George W. Bush succeeded him, the administration’s posture reverted to its 1980s version.
Like Reagan, Bush was skeptical of government interference in the market. And, like Reagan, he appointed officials sympathetic to businesses that wanted to avoid the cost of complying with new federal rules. It was not until 2004, five years after Clinton had proposed the new egg rules, that the Bush Administration issued actual regulatory language. And by 2009, when Bush left office, the administration still had not finalized the rule.
William Hubbard, who was associate FDA commissioner from 1991 until 2005 and now advises the Alliance for a Stronger FDA, tells TNR that the delay was not accidental:
The FDA simply couldn’t get through to the White House. They were very hostile to regulation. ... I was told that each time FDA tried to get the rule cleared through OMB, the response was that there were "not enough bodies in the street," -- that the number of cases, hospitalizations and deaths did not rise to the level to justify greater regulation of egg producers. Obviously, public health officials felt strongly that there was a strong justification, but the prevailing attitude at the time within the Administration was that regulation was an evil that should be avoided unless there was a compelling argument for government action.
I can't independently verify this. (I wasn't able to reach any of the relevant Bush Administration officials on Tuesday.) And it’s always possible Hubbard got bad information or doesn't know the full story. But Hubbard is a highly respected former official. What he says is consistent with conservative arguments about the costs and benefits of regulation--not to mention the Bush Administration's record. In 2008, for example, the Associated Press reported that the Bush Administration had blocked proposals to require electronic tracking of produce shipping, significantly complicating subsequent efforts to trace and recall contaminated peppers.
To be clear, philosophical and political reluctance wasn’t the only reason for the delay, as Hubbard himself pointed out. Bureaucratic tension played a large role, too, since the FDA shares regulatory authority with other agencies, chief among them the Agriculture Department (USDA). "Overall rule-making is a very slow process and this rule was slower than normal when finally underway because two agencies were attempting to work together, FDA and USDA," says Richard Wood, executive director of the Food Animal Concerns Trust.
And although Wood agrees that "an underfunded FDA and an aversion to regulation" slowed action during the Bush years, he also notes that Lester Crawford, who came to FDA in 2005, was sincerely committed to the cause--perhaps because Crawford himself once developed a serious salmonella infection.
But an ethics controversy ended Crawford's FDA tenure after just two months, stalling progress until 2009--when President Obama created a “food safety working group” and appointed a well-known public health advocate, Margaret Hamburg, to run the FDA. One year later, the FDA put the egg production requirements into effect.
Not that the rules are sufficient. The real game-changer, according to to the advocates and experts I consulted, is the new food safety bill--which has real bipartisan support and is proof that not all Republicans take skepticism of regulation to such extremes. But the fate of that legislation is uncertain. And while advocates have been pleased with the Obama administration's early commitment to food safety, they worry that his new budget request would leave the FDA under-funded. If the agency doesn't have enough resources, new rules and laws won't make such a difference.
I hope to have more to say on those subjects, and the broader debate about when regulation is really worthwhile, soon. In the meantime, if you want the full story on Austin "Jack" DeCoster and the controversies over his farms, I highly recommend Tom Philpott's article for Grist. You might also want to read Wednesday's New York Times story by William Neuman, describing how the British nearly wiped out salmonella with mass vaccination of chickens--something the FDA declined to require. Like I said, this issue gets pretty complicated once you get into the details.