Food Adulteration: History of Food Safety Laws and What It Means Today

The FMIA created sanitary standards applicable to the meatpacking industry and mandated the first continuous governmental inspection oversight of food production. Perhaps most importantly, the FMIA granted USDA enforcement authority over food safety regulatory violations. The FMIA also bifurcated oversight responsibilities between meat products and other types of food. That regulatory fragmentation has continued ever since.

The next piece of landmark food safety legislation was the 1938 Federal Food, Drug, and Cosmetic Act (FDCA). The FDCA granted FDA authority to oversee the safety of food, drugs, medical devices, and cosmetics. When the FDCA was enacted, FDA and USDA’s Food Safety and Inspection Service were both part of USDA. In 1940, however, President Roosevelt reassigned FDA to the Federal Security Agency (currently HHS) due to concerns about perceived conflicts between USDA’s and FDA’s respective missions.

For 70 years after the passage of the FDCA, food safety regulations remained largely unchanged. Then, in 2011, Congress passed the Food Safety Modernization Act (FSMA), vastly expanding FDA’s food safety oversight authority and ushering in the modern era of food safety.

Food Adulteration Today

For all that has changed in the century since the FMIA became law, it is surprising how much has remained the same.

Although the definition of adulteration has undergone many revisions and is now more comprehensive, it remains materially the same. Generally, a food is adulterated if it contains any poisonous or deleterious substances that may render it injurious to health. This could include chemicals, drugs, pesticides, and certain pathogens. Likewise, food that has been prepared, packed, or held under insanitary conditions such that it may have been rendered injurious to health or otherwise contaminated is adulterated. So are foods comprised in whole or in part of any filthy, putrid, or decomposed substance, or are otherwise unfit for food. Any food derived from an animal that has died by means other than slaughter, such as from disease, is deemed adulterated.

These are all relatively straightforward examples that ostensibly capture the ambit of adulteration. Yet, they collectively cover less than the first paragraph of the statute. In addition to the foregoing, products that have been intentionally subjected to radiation are adulterated. That’s pragmatic, but what about products unintentionally exposed to radiation? Shouldn’t any product exposed to radiation be adulterated? Perhaps. But then, sunlight is a form of radiation. Does that mean all sundried tomatoes are adulterated? Presumably not. This intellectual exercise, and countless others like it, illustrate how difficult it can be to define a seemingly simple concept, like adulteration.

There is also economic adulteration. Economic adulteration—also referred to as food fraud—refers to the practice of intentionally adulterating food for economic gain. Food fraud is among the most intractable problems facing the food industry. It isn’t a new problem, either. Evidence of food fraud dates back thousands of years, and has afflicted manufacturers, importers, retailers, and consumers alike. Nobody, as the old adage goes, is immune from human greed.

In some respects, food fraud presents a more formidable challenge than any other type of adulteration, including pathogens. This is because food fraud involves deliberate concealment. Moreover, successful perpetrators of food fraud seek to avoid inflicting discernible harm, meaning their crimes often go undetected—in fact, experts almost unanimously agree that most instances of food fraud go undetected.

That does not mean, however, that food fraud is a harmless crime. It is not. Food fraud causes profound economic and physical harm. For example, the Grocery Manufacturers Association estimates that food fraud results in $10- to $15 billion of direct losses annually. Further, food fraud impedes competition, rendering responsible, honest purveyors of food products unable to compete against fraudsters.