This article originally appeared in Food in Canada and is republished with the
permission of the publisher.
Until recently there has been little serious research on the
most significant food safety advance in the last decade, a
development that has been entirely outside the realm of public law
— the extraordinary growth of third-party supplier audits.
There are now over 500 food safety audit firms, many of which have
The Food Safety Service Providers, an industry association
representing nine leading private food safety audit firms, asserts
that its members alone conduct more than 200,000 audits and
inspections in more than 100 countries each year. It has been
estimated that in the U.S. the scale of private food law auditing
activity is now 10 times larger than that of the federal
government, more than all federal and state efforts combined. Two
recently published academic studies provide interesting insights
into several aspects of this important new area of food law.
Audits and Inspections Are Never Enough: A Critique to
Enhance Food Safety (Food Control, vol. 30, issue 2) by
Douglas Powell et al. identifies the many limitations of
third-party audits and documents several cases of major foodborne
illness outbreaks linked to food processors that have passed
third-party audits. Audits need to be supplemented by other
measures such as microbial testing, and companies must have
in-house capacity to meaningfully assess the audit results.
Third-party audits are part of "a shift in food safety
governance away from government regulation and inspection towards
the development of private food safety standards." This study
represents a cogent caution to the audit industry that they must
improve their systems, and a warning to the food industry that
audits are never enough.
In the latest Wisconsin Law Review American law
professors Timothy D. Lytton and Lesley K. McAllister
(Oversight in Private Food Safety Auditing: Addressing Auditor
Conflict of Interest, 2014) provide the first comprehensive
analysis of one of the most serious problems with private food
safety auditing — auditor conflict of interest. Auditors are
paid by the company being audited. Suppliers have an interest in
finding the cheapest and least intrusive audit that will provide a
certificate, and auditors have a financial incentive to reduce the
cost and rigour of audits to get business in a very competitive
environment. This study analyzes several oversight mechanisms that
have been developed to mitigate the conflict problem, but concludes
that at this time there are still too few financial incentives to
assure more rigorous auditing.
Considering how few inspections are actually carried out by the
Food and Drug Administration (FDA) relative to the number of
businesses it is responsible for, it is ironic that the U.S. has
been so reluctant to embrace more fully the advantages that
third-party audits represent. Perhaps this is because President
Obama is so beholden to consumer activist groups that do not trust
the industry, believe that only FDA inspectors can stop big bad
food companies from poisoning consumers, and who refuse to
recognize that it is private audits that are increasingly the
drivers of enhanced food safety. Obama has declared that it is the
state that has the primary responsibility for food safety, and the
former FDA commissioner dismissed audit schemes as being merely
"a business strategy, not a public health strategy."
In Canada we have always recognized that while it is a shared
effort, practically and legally it is food producers that have the
primary responsibility for food safety. Industry recognized some
years ago that they couldn't meet this responsibility
adequately just by complying with government regulations —
that they could protect their brand from recalls, minimize
foodborne illness law suits, source ingredients widely and trade
internationally only if, among other things, they insisted on
warranty agreements from suppliers and that these were backed up by
independent third-party audits. There are many legal and other
problems with these relatively new instruments at this still early
stage in their development, but they've come a long way in the
last 10 years.
Finding ways to better integrate public law-based food safety
regulations with private law-based certification systems may prove
to be one of our more interesting challenges in the decade
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