Food Law - Marler Clark

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Food Law - Marler Clark
Why We Have Less Food
Safety Than We Want
Neal Fortin
Director and Professor
Institute for Food Laws & Regulations
Michigan State University
[email protected]
www.IFLR.msu.edu
© 2008 Neal Fortin
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Why We Have Less Food Safety Than We Want
OUTLINE OF TALK
• The Under Appreciated Burden
• Market Failure on Food Safety
• The Limitations of Lawsuits
• Government Regulatory Limits
• What Can Do Done
INSTITUTE FOR FOOD LAWS & REGULATIONS
Apr. 10, 2008
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Why We Have Less Food Safety Than We Want
Foodborne Illnesses
Estimates
• 76 Million illnesses /year
• Every day in the United States,
roughly:
– 200,000 experience acute illness
– 900 require hospitalization
– 14 die
Mead et al.:
http://www.cdc.gov/ncidod/eid/vol5no5/mead.htm
INSTITUTE FOR FOOD LAWS & REGULATIONS
Apr. 10, 2008
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Why We Have Less Food Safety Than We Want
Mild Illnesses Discounted
• Discounted: 53 Million
cases of diarrhea
annually
• If < 1 day of diarrhea,
and
• No more serious
symptoms
INSTITUTE FOR FOOD LAWS & REGULATIONS
Apr. 10, 2008
Why We Have Less Food Safety Than We Want
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Underestimated Costs
– Traditional cost-of-illness method
• Medical costs, loss of work
• No measure of loss of leisure time,
pain and suffering, disruption of
daily life
• MSU Consumer Perceptions
Study (WTP)
–
Craig Harris, Andrew Knight, & Michelle R. Worosz, Shopping for Food
Safety and the Public Trust: What Supply Chain Stakeholders Need to
Know About Consumer Attitudes, FOOD SAFETY MAG. 52-59 (Jun. /Jul.
2006).
INSTITUTE FOR FOOD LAWS & REGULATIONS
Apr. 10, 2008
Economic Burden of
Foodborne Illness
$357 billion annually
•Willingness to pay
•(US alone)
•Loss of Productivity
•Healthcare Costs
•Not loss of market share
(lost consumer confidence)
•Not including Lawsuits
•Tanya Roberts, WTP estimates of the societal costs of U.S.
foodborne illness,(to be pub in Am. J. Ag. Econ.)
INSTITUTE FOR FOOD LAWS & REGULATIONS
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Why We Have Less Food Safety Than We Want
Apr. 10, 2008
The Human Face of
Foodborne Illness
• Quantitative risk
assessment (by design)
does not coincide with
society‘ values on risk
• Respecting society's
risk perception / values
– This is not probability neglect
INSTITUTE FOR FOOD LAWS & REGULATIONS
Kevin Kowalcyk 1 month
before he died
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Why We Have Less Food Safety Than We Want
Market Inefficiency
• Firms are under-rewarded in the
marketplace for food safety
– Consumers cannot buy the level of
safety they want
– And consumers want to buy more
safety
(Harris et al. 2006)
INSTITUTE FOR FOOD LAWS & REGULATIONS
Apr. 10, 2008
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Why We Have Less Food Safety Than We Want
Market Failure
• The business of business is to
pursue profits
• Do not look to corporations for
altruism
• Not an ethical issue
• Economic distortion creates
distortion in risk perception
INSTITUTE FOR FOOD LAWS & REGULATIONS
Apr. 10, 2008
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Why We Have Less Food Safety Than We Want
• Competition is fierce
• Cost-cutting vital
• Companies must compete
INSTITUTE FOR FOOD LAWS & REGULATIONS
Apr. 10, 2008
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Why We Have Less Food Safety Than We Want
Apr. 10, 2008
Strict Liability is Not Strict
Enough — Limits of Tort Law
• Lawsuits provide important feedback
to invest more in food safety
– When safety information is available after
purchase
• Works proportionate to proof of
causation
INSTITUTE FOR FOOD LAWS & REGULATIONS
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Why We Have Less Food Safety Than We Want
Imperfect
Information on
Causation & Food
Safety
– What food or drink?
– Victim’s stool not tested
– What bacteria or virus?
– Apparent isolated case
– No health department
investigation
Lawsuit
Organism
isolated
Case
investigated
Identification of
source
Stool sample etc analyzed
Doctor requests specimen
Diagnosed with foodborne illness
Seeks medical attention
Develops acute illness
Acute illness ~ 76 million /year
Mild illness (no economic injury)
> 53 Million / year
Exposures to a foodborne pathogen INSTITUTE FOR FOOD LAWS & REGULATIONS
1 billion / year ?
Apr. 10, 2008
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Why We Have Less Food Safety Than We Want
Less Than 1 in a
Million Chance of a
Trial for Foodborne
Illness
• No proof of causation
– What food or drink?
– Victim’s stool not tested
– What bacteria or virus?
– Apparent isolated case
– No health department
investigation
• Unequal Power Between
Victim and Manufacturer
Lawsuit
Apr. 10, 2008
Trial ~ 0.2 / 1 million acute illnesses
Case ~ 5 / 1 million acute illnesses
Organism
isolated
Case
investigated
Identification of
source
Stool sample etc analyzed
Doctor requests specimen
Diagnosed with foodborne illness
Seeks medical attention
Develops acute illness
Acute illness ~ 76 million /year
Mild illness (no economic injury)
> 53 Million / year
Exposures to a foodborne pathogen INSTITUTE FOR FOOD LAWS & REGULATIONS
1 billion / year ?
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Why We Have Less Food Safety Than We Want
Apr. 10, 2008
•Odds of facing trial
for foodborne illness =
~0.2/million
•Odds of being struck
by lightning =
2.5/million each year
This is why there are
exemplary damages
INSTITUTE FOR FOOD LAWS & REGULATIONS
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Why We Have Less Food Safety Than We Want
Trust Me, I’m From the
Government and Here to Help You
• Market inefficiency
– classic situation where
government controls necessary
• Regulatory agencies face
their own challenges
• Sub-optimization: “Agency retrenchment,
retreat, and slowness to act are rational
patterns of human social and bureaucratic
behavior.” Neal Fortin, The Hang-Up With HACCP: The Resistance to Translating Science
into Food Safety Law, 58 FOOD AND DRUG L. J. 565-594, Vol. 58:4 (2003).
INSTITUTE FOR FOOD LAWS & REGULATIONS
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Why We Have Less Food Safety Than We Want
What Can Be Done?
• Education on food safety
– Classic cure for market failure based on
inadequate information
– Underutilized
• Improve public health capacities
– Public health a victim of its own success
• Improve success of lawsuits!
– Improve science on causation
INSTITUTE FOR FOOD LAWS & REGULATIONS
Apr. 10, 2008
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Why We Have Less Food Safety Than We Want
Apr. 10, 2008
More That Can Be Done
• Traceability
– Incentive for whole marketing chain to provide safer
food
– Opportunity to market food safety (eg: TESCO)
• Citizens’ Food Protection Act
– Private cause of action
• Citizens not their bureaucratic surrogates are the public interest
– Courts can ensure agency decisions reflect republican
deliberation rather than an equilibrium of private
interest [The Hang-Up With HACCP: The Resistance to Translating Science into Food
Safety Law, 58 FOOD AND DRUG L. J. 565-594, Vol. 58:4 (2003)]
INSTITUTE FOR FOOD LAWS & REGULATIONS
Why We Have Less Food Safety Than We Want
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Commonality of interest between business and
stringent product safety standards.
- Michael E. Porter, The Competitive Advantage of Nations 648-49
(1990)
INSTITUTE FOR FOOD LAWS & REGULATIONS
Why We Have Less Food Safety Than We Want
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Apr. 10, 2008
Winner 2003 ADEC National Excellence in Distance Education Award
International
Food Laws &
Regulations
Courses
(Overview Course)
Codex
Alimentarius
OIE (World
Animal Health)
IPPC
(International
Plant Protection)
INSTITUTE FOR FOOD LAWS & REGULATIONS
United States
European
Union
Asia
Canada
Latin
America
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Why We Have Less Food Safety Than We Want
Dr. Vince Hegarty
Michael Roberts
Attorney / Lead
Instructor “Asia”
John Blakney
Attorney / Lead
Instructors
“Canada”
Dr. Gerald Moy
WHO
“Codex”
Paul Allen
“UK / EU”
Dr. David Jukes
Lead Instructor
“UK / EU”
Apr. 10, 2008
Paul O'Rourke
Attorney
“EU / Ireland”
Masako Hashimoto
“Japan - International”
Neal Fortin
Director / Lead Instructor
“United States”
Charles Cockbill
“UK / EU”
International Food Laws Online Certificate Program – Instructors
Mary Anne Verleger
“Course Manager”
Rebeca López-Garcia
Lead Instructor
“Latin America”
http://www.IFLR.msu.edu/
William Marler
Attorney
“United States”
Al Hafner
“United States /
Michigan”
Raul Boccone
Uruguay
“Latin America”
INSTITUTE FOR FOOD LAWS & REGULATIONS
Gretchen Stanton
WTO
“Switzerland”
J. Ralph Blanchfield
“UK”
Institute for Food Laws & Regulations – MSU
Dietrich Gorny
“EU / Germany”
Nicole Coutrelis
Attorney
“France / EU”
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Theresa Bernardo
Lead Instructor
OIE Course
Why We Have Less Food Safety Than We Want
Ian McDonell
NAPPO
“Canada”
Lonnie King
“United States”
Bernard Vallat
DG OIE
“France”
Gerald Moy Veronique Bellemain
ENSV
WHO
“France”
“Codex”
James Scudamore
“UK ”
Apr. 10, 2008
Ian Smith
DG - EPPO
“France ”
Alex Thiermann
OIE
“France”
Reinouw Bast-Tjeerde
CFIA
“Canada”
Cristobal Zepeda
“United States ”
John Hedley
Lead Instructor
“New Zealand”
Karim Ben Jebara
OIE
“France”
International Food Laws Online Certificate Program – InstructorsEva-Maria Bernoth
“Australia”
http://www.IFLR.msu.edu
Francois G. LeGall Robert L. Griffin
Ron A. Sequeira
“United States” USDA / APHIS / PPQ USDA / APHIS/ PPQ
“United States”
“United States”
David Wilson
“France”
Jens-Georg Unger
“Germany”
William P. Roberts
“Australia”
INSTITUTE FOR FOOD LAWS & REGULATIONS
Bob Ikin
Australia
Stephen Ogden
“New Zealand”
Institute for Food Laws & Regulations – MSU
David Bayvel
“New Zealand”
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Why We Have Less Food Safety Than We Want
Apr. 10, 2008
Thank you
Neal Fortin
Professor and Director
Institute for Food Laws & Regulations
Michigan State University
[email protected]
www.IFLR.msu.edu
INSTITUTE FOR FOOD LAWS & REGULATIONS

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