The Leading Voices in Food
E194: Foodborne illness and the struggle for food safety
When I was growing up, people didn’t fret much about food safety. Trichinosis from undercooked pork was about all I heard about. But today people hear about much more: norovirus, salmonella, campylobacter, staphylococcus, listeria, and there’s much more. So what in the world is happening? Our guest, Timothy Lytton, distinguished university professor and professor of law at Georgia State University knows an awful lot about this. He’s the author of a seminal book entitled “Outbreak: Foodborne Illness and the Struggle for Food Safety.”
Timothy D. Lytton is Distinguished University Professor and Professor of Law and currently serves as Associate Dean for Research and Faculty Development at Georgia State University College of Law. He teaches courses in torts, administrative law, and legislation. His research focuses on tort litigation and the regulation of health and safety. Lytton is the author of several books, including Outbreak: Foodborne Illness and the Struggle for Food Safety (University of Chicago Press 2019), which was a finalist for the 2020 ABA Silver Gavel Award, Kosher: Private Regulation in the Age of Industrial Food (Harvard University Press 2013), Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse (Harvard University Press 2008), and the editor of Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts (University of Michigan Press 2005). Lytton has B.A. and J.D. degrees from Yale University. He is licensed to practice law in New York, Ohio, and Georgia, and in 2018 was elected to membership in the American Law Institute.
When your book came out, I was so excited to see it, because there was so much talk out there in the general world about food safety, but to have somebody with a kind of your legal background take this on and put it all into a single volume, I thought was extremely helpful. So let me begin with a basic question. So how did you get interested in food safety and why do a book on it?
You know, our political world is largely characterized by an ongoing debate about people who favor government regulation against people who favor letting free markets run their own course. I found this debate somewhat unsatisfying. I’m really interested in a lot of ways that government activities and market activities interact. In fact, in most contexts we have not really two alternatives, one between government regulation and the other free markets. But instead, we have a complex interaction between public and private efforts to try and govern health and safety problems. This really is characteristic of what I would call complex regulatory systems. They involve at least kind of what you might think of as three legs of a stool. On the one hand, you have government regulation, you have private governance, supply chain management, and other things that companies do to protect health and safety. You have liability, lawsuits and liability insurance. These three legs of the stool really are interactive and they together comprise what I would call a complex regulatory system. And food safety’s really a great example of this and I think it was for me an important way to try and illustrate to people that our regulatory world is a lot more complex than the choice between government regulation and free markets.
There are a lot of places where business and government interests are at odds and government needs to keep a watchdog eye on business and make sure that they behave in ways that are consistent with the public good. You would think that government and business interests would align, that it’s not in a business’ interest have an unsafe food product that goes out there because all kinds of bad publicity and litigation and things like that can happen. So is it not true that there’s alignment of goals?
I think there’s alignment of goals. I think it’s also fair to say that sometimes there’s a difference of opinion as to just how aggressive or ambitious food safety regulation ought to be. On the one hand, industry tends to be a little bit more cautious. They may be worried about costs for food safety advances that may be unproven and government may be very nervous about making sure that consumers are properly protected they may be a bit more aggressive. I think one thing that is important to keep in mind is that even though there are those tensions, there’s a very powerful interdependence between the efforts of government regulators to try and advance food safety and the efforts of private industry supply chain managers. In fact, a lot of the standards that grow out of the system are standards that have come out of collaboration between them. So for example, standards for agricultural water quality that help reduce the microbial contamination of water that is used to irrigate crops. Those originated in technical committees that were put together by industry associations, but those technical committees included members who came from government regulatory agencies. By the same token, when government came around trying to develop guidance and regulations to govern agricultural water quality, they called on industry in the notice and comment period. So the same group of experts have been really working over the course of the last two and a half decades on water quality standards. They’ve been doing it in different institutional venues, sometimes in industry technical committees and sometimes in the government’s notice and comment process and sometimes in informal ways at conferences where they also meet and merge with academics. But, there’s an enormous amount of collaboration that comes out of this ongoing conversation that is occurring in these different institutional venues.
Thanks for that background. I’d like to ask you about the system’s approach to food safety that you proposed. But before we do that I’d like to ask kind of a broader question about where we stand with food safety in the US. So the industry is quick to claim that US has the safest food supply in the world. Is that really true? And how big of a problem is food safety in America?
You know, it really depends on how you measure it. The CDC estimates that each year from foodborne illness there are 3000 deaths, 128,000 hospitalizations, and 48 million cases of acute gastroenteritis. That really means serious enough illness to include diarrhea or vomiting or nausea that would be strong enough to keep a person out of work for a day or away from school. Now when you think about it in terms of deaths, that is 3,000 people a year who die from foodborne illness or foodborne-related illness. That’s much less than something like tobacco which is close to half a million, or obesity which is closer to quarter million, or auto accidents which is about 34,000. In that context, the number of deaths from foodborne illness is relatively low as public health problems go. On the other hand, if you think about the 48 million episodes of acute gastroenteritis each year, people being sick enough to really have to knock off a day of work and in some cases getting much sicker than that, that’s an enormous number. That is one out of six Americans every year. That is far more than the number of Americans who are injured in falls, car accidents, cutting, cycling, poisoning, and fire burn injuries all put together. It is orders of magnitude larger than those other things. So in that sense foodborne illness is a significant public health problem. And since we dedicate resources to things like falls in the home or car accident injuries, we probably should also be paying attention to food safety.
As you think about trends and look at the drivers of food safety, the way farming is done in the US, the way food is transported and those sort of issues, are you expecting that the challenges will become even more serious as time goes on, or are these being reined in?
I think that things are moving in two different directions one of which is difficult for food safety and one of which is advantageous. On the difficult side: the industrialization of food; the mass production; the large and growing global markets; and the increasingly complex supply chains where we’re getting a lot of our produce from around the world This makes the problem much more difficult because there is just a farther reach that regulations would have to get to in order to help protect consumers from the risk of contamination. Also the ability to track and trace back the root causes of contamination just becomes more difficult as the food system becomes increasingly global. On the other hand, there are a number of important advances in technology. In particular, advances in technology that relate to surveillance and tracing. The ability to actually isolate and create a DNA fingerprint for different pathogens that are harvested from people who are sick or are harvested from investigations where contamination might occur, and that allow public health authorities to actually discover and spot outbreaks as they occur more frequently. And also increasing sophistication in tracing them back to their root causes. That growing technology, that ability to spot and trace back the source of foodborne illness, I think, is probably something that is getting better and better over time.
That’s good news to hear and fascinating description of this. So you talk about a system’s approach to food safety. What do you mean by that?
When we think about food safety, what we want to do is realize that instead of just pushing on one of these legs of the stool – more government regulation or for less government regulation, greater industry vigilance or less industry vigilance, greater liability or increasing liability insurance for growers or other food producers – we need to think about how these things are interrelated. We need to think about how we can help them complement each other. So for example, it may be the case that what we want to do is relieve the government of its burden, to some degree, of inspection because the government just doesn’t have their inspection resources, it needs to cover all of the food industry and it struggles to do so. On the other hand, retailers who sell the food actually have a global and robust system of third party audits and that is driven by economic incentives and it has a much farther reach than government. We might find ways to rely more on that and government can then shift its resources away from things like inspection, which is really doesn’t have the resources to do comprehensively and spend more of its money on surveillance of foodborne illness, so we can spot outbreaks when they occur, as well as tracing investigations to figure out what are the root causes of those outbreaks. That requires a governmental infrastructure at the federal, state, and local level and on some levels increasingly at the global level, that really only government can put together and overlook and oversee and develop. And so these are ways in which we can think in a system’s approach, that instead of just looking for government to do everything or industry to do everything we can sort of divide the different types of tasks that are required, to create a robust food safety system and look at the ways in which these different branches of the system can complement each other.
Let’s look beyond our own borders and talk about how other countries address these issues. How does the US measure up to what other countries are doing?
We don’t really know the answer to that question, we don’t really know how well the US is actually doing. It’s extremely difficult to figure out whether or not any particular regulation or intervention works. In fact, that’s really the story of a lot of different regulatory areas, food is not different in this way. We spend an enormous amount of money on developing and implementing regulations, but very little money in trying to figure out how effective they have been or whether they’ve been efficient or whether there are better ways to do them. Those questions are very difficult to answer and they are enormously expensive. As a result, we don’t really know how well the US food safety system is doing. That becomes a similar problem when we look at places like Germany or England or Japan to figure out, well, how well are they doing? It’s pretty hard to measure that as well. So there’s not even something to compare here. I think a lot of people have general impressions about whether food is safer in one country or another and this will depend on the sector. Food safety in meat is different than fluid milk and it’s different than fresh produce or poultry. I think it’s a difficult question to answer and I think you hear a lot of opinions about this, but most of those opinions are not really, I don’t think, grounded very clearly in the kinds of careful measures we would need to have in order to have good reliable answer to that question.
I’d like to underscore something you just said that it’s hard to know whether the food safety regulations that we have actually work. So why is that the case and what do you think are some of the greatest challenges facing the food safety system today?
It’s just a very curious thing. When I was doing my research, I would ask people how well is your system working and they couldn’t tell me. If you ask someone in industry, we put in a million dollars into marketing, what do we get for it? They will be able to come back to you in a year and tell you for the million dollars you put into marketing, in the budget, we got X number of sales. We can do the same thing with quality control. We give you a million dollars, what did we get for it? A year later they’ll come back and say, “Well we had X number of fewer defective products.” But when you ask a company executive we give you a million dollars for food safety last year, what do we get for it? They can’t really tell you. They give you some vague story about how they have improved the culture around food safety and institution. The same is true with government officials. When I ask people at the USDA, you know how well are your food safety inspections going? Have they improved the quality of American food safety? They really couldn’t even begin to answer that question. One of the top officials at USDA told me, “Gee, I’d really love to know the answer to that question.” I think there are a couple reasons why. One is it’s very hard to measure how much illness there is, of the estimates of 48 million episodes, that’s really, you know, a projection based on statistics. Of those 48 million episodes only 800 involve identified outbreaks. So, we only have 800 that we actually are counting. Of those, there are only about 300 identifiable food vehicles and of those, there are only about three to four cases where we can trace back to the root causes. So, we don’t even know where the foodborne illness is coming from, even if we have a rough estimate of how much there is. It’s also hard to know what caused the illness because we don’t have root cause analysis or it’s very rare. We don’t know whether or not a particular intervention fell short or really made the difference. It’s very difficult to figure out what the different levels of illness connected with a particular food are. We can make a food safety change but we don’t have any way to measure on the public health side whether or not illness has been reduced as a result of that. When illness rates go up or down, we don’t really have a way of tracing that back to where the failure’s occurring in the system. We can’t connect particular interventions to improve food safety with particular public health outcomes in terms of reducing illness.
You know, it’s amazing how complicated this is, because when you’re a consumer and you go to the store, you go to a restaurant and you buy something, you just assume it’s going to be safe. And there are a whole bunch of people that are paying attention to that and making sure that that is so, but it’s way more complicated than that. So interesting to hear you lay that out. So let’s talk about what you think effective reforms would be. I’d like to ask about one thing in particular, in this context, where some people have called for reorganizing federal food safety regulation under a single federal agency which kind of makes sense instinctually, wouldn’t it make sense instead of having destroyed the things going on, that all take place under one umbrella? I know you have some reservations about that. Could you explain?
Sure, I’ll just start with this idea of a single food safety agency. This is a proposal that has been put forward in every single presidential administration, Democratic and Republicans, since the Truman Administration. It’s basically the idea that if we can rearrange the bureaucratic structure of food safety, we can reap efficiencies and do a better job. I think there are a number of reasons to be skeptical of this particular approach to fixing the food safety system. First of all, there’s very widespread lack of support from Congressional oversight committees. Congressional oversight committees and industry are basically connected with particular agencies. There are about 15 federal agencies currently that deal with food safety and each one has its own oversight committee in Congress. If you were to consolidate that, you would reduce the power of each of those congressional representatives to actually serve the interests of their constituents. It would make it harder for industry to sort of exercise influence in government. As a result, there’s really not much support in Congress for this sort of consolidation. Second, it would require a massive and complex statutory overhaul. The food safety laws of this country go back to the late 19th century. They’re involved in many difficult and complex and large statutory laws and they all are put together in a complex system. And I can’t imagine the Congress getting involved in that level or scale of a statutory overhaul what it would take to consolidate this all in one agency. Furthermore, the agencies have different expertise and culture. So USDA is populated largely by people who do animal veterinary science and they look at beef production and poultry production. FDA’s populated by microbiologists and they look at a lot of things related to water quality and safety and food production. These are just different technical skills and so reorganization would be very difficult. And finally, I would say that there’s no evidence from other countries that have done this and a number of countries have done this, that they have reaped any public health benefits from this. We do know it would cost an enormous amount of money at the front end, but we don’t have any indication that it would actually save us any money or be more effective at the back end. I think we would do a better job, rather than consolidating and rearranging the bureaucracy, to do a better job of knitting it together and creating cooperative task forces and more interaction between agencies. There’s actually a lot of this already. There are joint task courses that have membership from USDA and FDA and the CDC and the other agencies involved. And I think that that growing coordination is probably a better approach to the food safety system than trying to consolidate. When we move away from that, I think there are probably three things I would focus on in terms of advances that would be good reforms for us. The first is to focus more government investment on outbreak investigation, to put more money into the CDC’s surveillance systems for foodborne illness and the inter-agency cooperation that goes into investigating outbreaks. We need more information in order to know whether what we’re doing is working and one way to generate that is better surveillance at the public health side and better investigation. Second thing I would do is I would rely more on private resources for oversight of that system. That is to rely more on private auditors and on liability insurance and the liability system to try and put pressure in order to have food producers more compliant with food safety regulations as opposed to spending a lot of government money on what’s really become quite an inadequate inspection system. And the last thing I would stress is that we want to look for opportunities for feedback and learning. We want to be more experimental in the way that we think about food safety, try something out and then build into that a way to evaluate whether we think it works and whether or not we think it’s an efficient way to go about advancing food safety in that way. Only if we generate more information, we’ll be able to do things that we have greater confidence are safeguarding consumers as opposed to what we’re doing now, which is largely just shooting in the dark.
Those things make a great deal of sense. So let me close by asking you kind of a broad summary question. You’re really on top of this, of course, as you see trends like in public opinion on these issues, on actions that are being taken by the administrative and legislative branches of government, what industry is doing, is there a reason to be hopeful that things are moving in a good direction?
I think there are two sources of hope at least. One is that we are seeing steady technological advances in the ability to fingerprint DNA of foodborne pathogens. Those technological advances are sort of moving along and as they move along, they are spinning off better ways to spot foodborne illness outbreaks when they occur, more effective and efficient ways to investigate the root causes of it. And they are also creating new ways of thinking about how we can intervene in food production to try and create opportunities to reduce microbial contamination after it occurs or before it occurs. So technological events I think is a great source of hope. There are really a lot of very smart minds working very hard in a number of fields to try and improve food safety. The second thing I think that’s a source of hope is the maturation of liability insurance. This is not something that most people think about very much. But when you think about big public health problems of the last century – things like urban fires in the 19th century and things like car accidents in the 20th century – liability insurance became a major driver for safety reforms in those two areas. Liability insurers basically collect premiums to ensure when those accidents happen and then they try and figure out ways not to have to pay out when the accidents happen on the insurance policies. So they get into the safety business. Many of our safety features associated, for example, with fire safety measures in our houses, in public buildings, as well as the type of things that our cars have in terms of safety equipment are driven by the liability industry trying to look for ways to reduce risks so that they cannot have to pay out when there are accidents. I think those types of markets are emerging in food safety. Increasingly we see food safety liability insurers getting into the business of trying to help companies figure out how to comply with the state-of-the-art in food safety.