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YOUR SOURCE ON FOOD LITIGATION AND REGULATION

The Food and Drug Administration (FDA) and the US Department of Agriculture (USDA) have announced a memorandum of understanding (MOU) to help prevent potential disruptions to the food supply chain, particularly fruit and vegetable processing plants, resulting from the coronavirus (COVID-19) pandemic.

In a joint statement, USDA Under Secretary for Food Safety Mindy Brashears, Ph.D., and FDA Deputy Commissioner for Food Policy and Response Frank Yiannas noted that the MOU is “an important preparedness effort” due to the upcoming peak harvesting seasons, when many fruits and vegetables grown across the United States are sent to FDA-regulated facilities to be frozen or canned.

The MOU puts in place a process by which FDA and USDA can communicate and make determinations about cases where the USDA can exercise its authority under the Defense Production Act (DPA) with regard to certain domestic food resource facilities that manufacture, process, pack, hold, grow, or harvest food and that fall under FDA’s jurisdiction.

Under the MOU, FDA will do the following:

  • Monitor the integrity and adequacy of the domestic food supply subject to FDA regulation
  • Collaborate with stakeholders to identify potential food supply chain disruptions
  • Direct FDA-regulated entities to applicable guidance
  • Assess existing and potential disruptions to the domestic food supply
  • Educate stakeholders about the MOU and the potential for use of DPA authority to protect the domestic food supply chain
  • Contact USDA if it finds a potential disruption in order to discuss appropriate action

For its part, USDA will do the following under the MOU:

  • Retain exclusive delegated authority to issue DPA orders or invoke DPA authorities with regard to food resources and domestic food resource facilities
  • Collaborate with FDA when notified of potential disruptions
  • Consult with FDA to issue orders related to food resources and food resource facilities

In addition to protecting the US food supply, the MOU is also aimed at ensuring worker safety. In their joint statement, Dr. Brashears and Mr. Yiannas emphasized the need for essential workers in food facilities and retailers to continue to work safely, by ensuring that the food and agricultural industry is operating in accordance with federal worker safety guidelines. For this purpose, the two agencies are also coordinating with other federal partners to assist the food and agriculture industry in addressing shortages of personal protective equipment (PPE), cloth face coverings, disinfectants, and sanitation supplies.

The MOU provides some additional clarity to an issue that has been pending since the issuance of Executive Order 13917, which was signed by the president on April 28, 2020. Although that document focuses almost entirely on the meat and poultry industries, it also contained language authorizing the secretary of agriculture to identify “additional food chain resources.” This has led to the question of whether and how such authority might extend to the continued production of food categories that, unlike meat and poultry, fall under the inspection jurisdiction of FDA. The answer for now appears to be that USDA’s authority extends to food categories that did not traditionally fall under its inspection jurisdiction, as long as USDA first consults FDA.

For those inclined to find the logic behind vesting such authority to USDA, it is worth noting that, if one looks beyond the confines of the food inspection statutes, USDA’s broader institutional responsibility for both oversight of and support for the entire domestic food production system comes into play here. Nevertheless, regardless of who decides what, when, and how, the significant challenge at hand for both industry and government is to find a proper way to maintain the essential functions of the food system in a manner that appropriately protects public health. That challenge persists.