United States: The War Over FSMA

Last Updated: July 22 2013
Article by Andrew G. Phillips, James F. Neale and Angela M. Spivey

In 2011, Congress charged the U.S. Food and Drug Administration (FDA) with implementing the Food Safety Modernization Act (FSMA) — the most comprehensive and significant updating of the country's food safety laws in decades. FSMA is aimed at reducing threats ranging from foodborne illness to food supply terrorism, by shifting regulatory focus from reaction to prevention.

The legislation also mandated an aggressive — and perhaps unrealistic — implementation schedule. The FDA was "required" to promulgate regulations in seven key areas by 2012. That didn't happen. In 2013, much of the FDA's FSMA work is still incomplete. Of course, as the FDA is quick to point out, in a time of sequesters and cutbacks, it cannot pour all its resources into developing a new food safety paradigm while simultaneously discharging its existing obligations to protect America's food supply. Thus, the FDA counsels patience.

Those clamoring for FSMA implementation are out of patience, and recently handed the FDA a major defeat in a California federal district court. In August 2012, the Center for Food Safety (CFS) filed suit under the Administrative Procedure Act (APA) to force the FDA to propose and implement FSMA food safety regulations in seven key areas within the time limits set by Congress.1 These areas include a foreign supplier verification program, protection against intentional adulteration and safe food transportation. CFS sought a declaration that the agency had violated the APA and FSMA and an injunction requiring the FDA to promulgate rules pursuant to a court-ordered timeline.

In that lawsuit, the FDA acknowledged that it had not complied with the deadlines set forth by Congress, but argued that declaratory or injunctive relief was not appropriate under the APA because it had not "unreasonably" withheld or delayed action. Instead, the FDA maintained that it was necessarily balancing the burden of creating a complex and expansive new regulatory food safety framework with its existing responsibility for safeguarding much of the nation's food supply pursuant to the Federal Food, Drug, and Cosmetics Act — all with finite fiscal and human resources. CFS countered that because Congress has set specific deadlines for the promulgation and implementation of the various rules and regulations, the reasonableness of the FDA's delay was no defense and it was entitled to summary judgment.

The court ultimately sided with CFS, granted summary judgment in its favor and denied summary judgment to the FDA. However, the court also found that the FDA had presented credible arguments against a hasty or arbitrary rulemaking timeline and ordered the parties to submit a joint proposed timeline by May 20, 2013, that could form the basis for an injunction. In its order, the court noted that "[i]t will behoove the parties to attempt to cooperate on this endeavor, as any decision by the court will necessarily be arbitrary." The court later extended the joint proposal deadline to June 10, 2013. Despite the extension, the parties were unable to reach an accord, and instead submitted separate proposals. Under those proposals, CFS sought specific and aggressive deadlines while the FDA sought later and less specific "goals" and "targets."

On June 21, 2013, the court issued a final order disposing of the case and resolving the impasse. In that order, the court chastised the FDA for providing only "targets" and "goals" as opposed to true deadlines. However, it also found CFS's proposed deadlines too restrictive and refused CFS's requests to limit the public comment period on proposed rules or discontinue the Office of Management and Budget analysis of proposed rules. Thus, the court rejected both parties' proposals and, as promised, imposed its own framework for the promulgation and implementation of regulations that have not yet been published in the Federal Register.

Specifically, the court ordered that:

  1. The FDA must publish all proposed regulations by Nov. 30, 2013;
  2. For each regulation, the close of the public comment period shall be no later than March 31, 2014; and,
  3. All final regulations shall be published in the Federal Register no later than June 30, 2015.

Thus, having failed to meet the congressionally mandated statutory requirements for the proposal and enactment of new food safety regulations under FSMA, the FDA is once again on the clock — this time the clock of the Northern District of California. While the court-imposed framework is more compact and concrete than FDA requested, it is also substantially less hurried than CFS sought. McGuireWoods' food and beverage lawyers will continue to monitor the FDA's FSMA rulemaking progress and related litigation.

McGuireWoods food and beverage industry team members have extensive experience advising the food and beverage industry in regulatory compliance issues and, specifically, FDA rulemaking and enforcement. We can assist those who desire input into the FSMA rulemaking process and counsel companies about measures they can take to comply with FSMA's requirements once enacted.


1. Center for Food Safety et al. v. Hamburg et al., 4:12-cv-04529 (U.S. Dist. N. D. Ca.).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions