Is Flexibility in the Food Safety and Modernization Act a Good Thing?


In January of 2011, Congress signed into existence the […]

In January of 2011, Congress signed into existence the Food Safety and Moderization Act, or FSMA. The idea behind the FSMA is to proactively, rather than reactively, fight against foodborne illnesses and other food safety concerns. One way the FSMA works to achieve these goals is by requiring packagers to create and maintain preventive control programs in facilities that package or process food. This rule of the FSMA, titled the Proposed Rule for Preventive Controls for Human Food, has not yet been enacted, but sits in the comment period until September of 2013.

Of course the comment period is an opportunity to work out the kinks of proposed legislation, try to identify problem areas and suggest improvements, if necessary. The Proposed Rule for Preventive Controls for Human Food has an aspect of flexibility built into it. In other words, there will not be strict standards for each and every facility to follow. Rather, individual facilities will, to an extent, draft their own plans and policies to prevent the product and processes of food packaging safe. The flexibility built into the proposed rule, as is usually the case, includes both pros and cons.

First, almost no food packaging or processing plant will be identical to any other plant. Each facility will have their own process, which will include different levels of automation, different packaging machinery and different environments. The flexibility is necessary in that creating a single set of rules to cover all facilities would have one of two negative effects. Were a single rule or set of rules proposed for every facility, these rules would likely become so broad in trying to encompass all companies that they would probably lose all meaning, defeating the actual purpose of the rule. If not written broadly, a single set of rules would need to have so many exceptions that the end result would again be sacrificing the intended purpose of the rule. In this respect, the flexibility built into the rule by the FSMA is beneficial.

However, allowing for flexibility will be felt all the way down the supply chain, depending on the final draft of said rule. Assume that two very similar companies are packaging a common product, like ketchup. These two facilities will each have to consider their own safety plans when purchasing bottles, caps, packaging machinery and any other supplies necessary for the complete packaging of the product. Not only will the Food Industry company need to be completely aware of the preventive controls, but each of the suppliers will also need to understand the plan as adopted by the company. A failure to communicate could lead to an unintentional violation of the plan. The violation, in turn, could lead to an abundance of lost time, lost product and, in the end, lost revenue.

Manufacturers of supplies, including but not limited to those mentioned above, could unintentionally violate the safety plan without ever knowing such a plan existed. For example, if a contact part in a filling machine for the ketchup mentioned above met the standards for the last ten filling machines built for ketchup, the part may still not meet the standards when built for the eleventh company.

While for all practical purposes, the flexibility is a necessary part of this FSMA rule. Unfortunately, there is no way to really know before putting the rule into practice whether the flexibility will achieve its purpose, or even achieve it without causing undue burden. The good news for packagers, processors and suppliers is that it does seem the problem can be eradicated with good communication skills.


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