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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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Page 1: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

Why We Have Less Food Safety Than We

WantNeal Fortin

Director and Professor Institute for Food Laws & Regulations

Michigan State University [email protected]

www.IFLR.msu.edu

© 2008 Neal Fortin

Page 2: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

Apr. 10, 2008Why 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

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Page 3: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

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

Apr. 10, 20083

Page 4: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

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

Apr. 10, 20084

Page 5: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

Apr. 10, 2008Why We Have Less Food Safety Than We Want

Underestimated Costs

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– 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, Craig Harris, Andrew Knight, & Michelle R. Worosz, Shopping Shopping for Food Safety and the Public Trust: What Supply Chain for Food Safety and the Public Trust: What Supply Chain Stakeholders Need to Know About Consumer AttitudesStakeholders Need to Know About Consumer Attitudes, FOOD , FOOD SAFETY MAG. 52-59 (Jun. /Jul. 2006).SAFETY MAG. 52-59 (Jun. /Jul. 2006).

Page 6: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

Economic Burden of Economic Burden of Foodborne IllnessFoodborne Illness

$357 billion annually•Willingness to payWillingness to pay•(US alone)(US alone)•Loss of ProductivityLoss of Productivity•Healthcare CostsHealthcare Costs•Not loss of market shareNot loss of market share

(lost consumer confidence)(lost consumer confidence)•Not including LawsuitsNot including Lawsuits

•Tanya Roberts,  Tanya Roberts,  WTP estimates of the societal costs of U.S. WTP estimates of the societal costs of U.S. foodborne illnessfoodborne illness,(to be pub in Am. J. Ag. Econ.) ,(to be pub in Am. J. Ag. Econ.)

Page 7: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

Apr. 10, 2008Why We Have Less Food Safety Than We Want

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

Kevin Kowalcyk 1 month Kevin Kowalcyk 1 month before he diedbefore he died

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Page 8: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

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)

Apr. 10, 2008Why We Have Less Food Safety Than We Want8

Page 9: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

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

Apr. 10, 2008Why We Have Less Food Safety Than We Want9

Page 10: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

Apr. 10, 2008

• Competition is fierce • Cost-cutting vital• Companies must

compete

10 Why We Have Less Food Safety Than We Want

Page 11: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

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

Apr. 10, 2008Why We Have Less Food Safety Than We Want11

Page 12: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

Apr. 10, 2008Why We Have Less Food Safety Than We Want

– What food or drink?

– Victim’s stool not tested

– What bacteria or virus?

– Apparent isolated case

– No health department investigation

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Imperfect Information on

Causation & Food Safety

Page 13: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

Apr. 10, 2008Why We Have Less Food Safety Than We Want

• 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

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Less Than 1 in a Million Chance of a Trial for Foodborne

Illness

Trial ~ 0.2 / 1 million acute illnesses

Case ~ 5 / 1 million acute illnesses

Page 14: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

Apr. 10, 2008Why We Have Less Food Safety Than We Want14

This is why there are This is why there are exemplary damagesexemplary damages

•Odds of facing trial Odds of facing trial for foodborne illness = for foodborne illness = ~0.2/million~0.2/million

•Odds of being struck Odds of being struck by lightning = by lightning = 2.5/million each year2.5/million each year

Page 15: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

Trust Me, I’m From the Government and Here to Help

You• Market inefficiency

– classic situation wheregovernment 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).

Why We Have Less Food Safety Than We Want15

Page 16: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

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

Apr. 10, 2008Why We Have Less Food Safety Than We Want16

Page 17: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

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)]

Apr. 10, 2008Why We Have Less Food Safety Than We Want17

Page 18: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

Why We Have Less Food Safety Than We Want

Commonality of interest between business and stringent product safety standards. - Michael E. Porter, The Competitive Advantage of Nations 648-49 (1990)

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Page 19: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

Apr. 10, 2008Why We Have Less Food Safety Than We Want

CoursesInternational Food Laws & Regulations

(Overview Course)

Codex Alimentarius

OIE (World Animal Health)

IPPC (International

Plant Protection)

United States

European Union

Asia

Canada

Latin America

Winner 2003 ADEC National Excellence in Distance Education Award19

Page 20: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

International Food Laws Online Certificate Program – Instructorshttp://www.IFLR.msu.edu/

John BlakneyJohn Blakney

Nicole CoutrelisNicole CoutrelisAttorneyAttorney

“France / EU”“France / EU”

Gretchen StantonGretchen StantonWTOWTO

“Switzerland”“Switzerland”

Dr. David JukesDr. David JukesLead InstructorLead Instructor

“UK / EU”“UK / EU”

Masako HashimotoMasako Hashimoto“Japan - International”“Japan - International”

Paul AllenPaul Allen“UK / EU”“UK / EU”

Neal FortinNeal FortinDirector / Lead InstructorDirector / Lead Instructor

“United States”“United States”

Dr. Vince HegartyDr. Vince Hegarty Dr. Gerald MoyDr. Gerald MoyWHOWHO

“Codex”“Codex”

Rebeca López-GarciaRebeca López-GarciaLead InstructorLead Instructor

“Latin America”“Latin America”

Attorney / Lead Attorney / Lead InstructorsInstructors“Canada”“Canada”

J. Ralph BlanchfieldJ. Ralph Blanchfield“UK”“UK”

Raul BocconeRaul BocconeUruguayUruguay

“Latin America”“Latin America”

Al HafnerAl Hafner“United States / “United States /

Michigan”Michigan”

Charles CockbillCharles Cockbill“UK / EU”“UK / EU”

Dietrich GornyDietrich Gorny“EU / Germany”“EU / Germany”

Paul O'RourkePaul O'RourkeAttorneyAttorney

“EU / Ireland”“EU / Ireland”

Institute for Food Laws & Regulations – MSUInstitute for Food Laws & Regulations – MSU 20062006

Mary Anne VerlegerMary Anne Verleger“Course Manager”“Course Manager”

William MarlerWilliam MarlerAttorneyAttorney

“United States”“United States”

                                                                                                                                            

Michael RobertsMichael RobertsAttorney / Lead Attorney / Lead

Instructor “Asia”Instructor “Asia”

Apr. 10, 200820 Why We Have Less Food Safety Than We Want

Page 21: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

David BayvelDavid Bayvel “New Zealand” “New Zealand”

Lonnie KingLonnie King“United States”“United States”

James ScudamoreJames Scudamore“UK ”“UK ”

Veronique BellemainVeronique BellemainENSVENSV

“France”“France”

Bernard VallatBernard Vallat DG OIE DG OIE “France”“France”

Gerald MoyGerald MoyWHOWHO

“Codex”“Codex”

Theresa Bernardo Theresa Bernardo Lead Instructor Lead Instructor

OIE CourseOIE Course

David WilsonDavid Wilson“France”“France”

Cristobal ZepedaCristobal Zepeda“United States ”“United States ”

Alex ThiermannAlex ThiermannOIEOIE

“France”“France”

Eva-Maria BernothEva-Maria Bernoth“Australia”“Australia”

Karim Ben JebaraKarim Ben JebaraOIEOIE

“France”“France”

Institute for Food Laws & Regulations – MSUInstitute for Food Laws & Regulations – MSU 20062006

Francois G. LeGallFrancois G. LeGall“United States”“United States”

International Food Laws Online Certificate Program – Instructorshttp://www.IFLR.msu.edu

                                                                                                                 

Robert L. GriffinRobert L. GriffinUSDA / APHIS / PPQUSDA / APHIS / PPQ

“United States”“United States”

Ian McDonellIan McDonellNAPPONAPPO

“Canada”“Canada”

                                            

Bob IkinBob IkinAustraliaAustralia

Stephen OgdenStephen Ogden “New Zealand” “New Zealand”

John Hedley John Hedley Lead Instructor Lead Instructor“New Zealand”“New Zealand”

William P. RobertsWilliam P. Roberts“Australia”“Australia”

Ron A. SequeiraRon A. SequeiraUSDA / APHIS/ PPQ USDA / APHIS/ PPQ

“United States”“United States”

                          

Reinouw Bast-TjeerdeReinouw Bast-TjeerdeCFIA CFIA

“Canada”“Canada”

Ian Smith Ian Smith DG - EPPODG - EPPO“France ”“France ”

Jens-Georg UngerJens-Georg Unger“Germany”“Germany”

Apr. 10, 200821 Why We Have Less Food Safety Than We Want

Page 22: Why We Have Less Food Safety Than We Want Neal Fortin Director and Professor Institute for Food Laws & Regulations Michigan State University fortinne@msu.edu

INSTITUTE FOR FOOD LAWS & REGULATIONS

Apr. 10, 2008Why We Have Less Food Safety Than We Want

Thank you

Neal FortinProfessor and Director Institute for Food Laws & RegulationsMichigan State University [email protected]

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