2222021 The Obstacles of Outsourcing Imported Food Safety

2/22/2021 The Obstacles of Outsourcing Imported Food Safety To China Chenglin Liu St. Mary’s University School of Law April 28, 2016 The Brookings Institution 1

FOODS IMPORTED FROM CHINA CONSUMED IN THE U. S. 2/22/2021 90% of vitamin C supplements 80% of tilapia 49. 6% of apple juice 51% of cod fish 31% of garlic 11% of frozen spinach Source: Patty Lovera, Testimony before the House Committee on Europe, Eurasia, and Emerging Threats— Hearing on the Threat of China’s Unsafe Consumables, May 8, 2013. 2

FDA INSPECTION RATE 2/22/2021 The FDA inspects only 1% of imported foods. Most of the inspections are of documents not of the physical condition of the foods. 3

OVERVIEW OF THE U. S. FOOD SAFETY REGULATORY SYSTEM • 2/22/2021 • The Food, Drug and Cosmetic Act (FDCA) and 30 other laws 15 Regulatory Agencies, including: FDA: food in general; – USDA: eggs, meat and poultry; – EPA: regulating pesticide residues; – CDC: tracking food-borne illnesses. – • • The FDA regulates 80% of the food consumed in the U. S. Food Safety Modernization Act (FSMA) 2011 4

ENFORCEMENT TOOLS IN THE U. S. 2/22/2021 Outcome-Based Tools (ex post) Physical Inspections Seizures and Injunctions Criminal Sanctions $100, 000 fines and one year imprisonment Voluntary Recalls Tort Litigation Production-Based Tools (ex ante) Good Manufacturing Practices (GMP) Hazard Analysis and Critical Control Points (HACCP) 5

WEAKENED ENFORCEMENT IN THE CONTEXT OF IMPORTED FOODS 2/22/2021 Outcome-Based Tools Low inspection rate Owners not deterred by criminal sanctions Challenges of suing Chinese producers Challenges of suing U. S. retailers Production-Based Tools Impossible to conduct GMP or HACCP inspections 6

SEARCH FOR SOLUTIONS 2/22/2021 The Bush Administration’s Mandate Enhance food safety within existing resources Inter-agency Working Group (IWG) Report FDA Action Plan on Imported Food Safety Reduce physical inspections Capacity building The Agreement with China, 2007 The Implementing Agreement, 2014 7

OUTSOURCING REGULATORY POWER TO CHINA 2/22/2021 Main Provisions Recognizing China’s food standards Relying on the Chinese government for food safety 8

FDA’S INSPECTION IN CHINA 2/22/2021 Stationing 26 U. S. FDA inspectors in China Conducting inspection with advance notice Language and administrative barriers Low inspection rate 13 inspections in 2010 10 inspections in 2012 Source: Patty Lovera, Testimony before the House Committee on Europe, Eurasia, and Emerging Threats— Hearing on the Threat of China’s Unsafe Consumables, May 8, 2013. 9

WILL CHINA ENFORCE U. S. FOOD SAFETY? Safety Law (FSL), 2015 Enforcement Obstacles Local Protectionism Corruption Environmental Degradation Fragmented Food Industry 2/22/2021 Food 10

COMPARATIVE PERSPECTIVES Kong Japan 2/22/2021 Hong 11