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52 Harv. J. on Legis. 125 (2015)
The Risks We Are Willing to Eat: Food Imports and Safety

handle is hein.journals/hjl52 and id is 129 raw text is: ARTICLE THE RISKS WE ARE WILLING TO EAT: FOOD IMPORTS AND SAFETY ALEXIA BRUNET MARKS* How and what we eat determines to a great extent the use we make of the world-and what is to become of it. - Michael Pollan Recent efforts to regulate the safety of U.S. food imports have not kept up with the complexity of global trade and the risks that accompany globalization. Congress drafted the Food Safety Modernization Act of 2011 (FSMA ) in re- sponse to heightened food safety risks, surging imports, and an outdated food import safety system. While the FSMA provides the Food and Drug Administra- tion (FDA ) additional authority to regulate food facilities, establish standards for safe produce, recall contaminated foods, and oversee imported foods, vulner- abilities still exist. This article exposes problems with the old system of food import rules and significant challenges facing the FDA as it implements the new FSMA rules. Using a hypothetical, the author compares food import risks before and after the FSMA rules to determine which vulnerabilities are likely to remain despite the new rules. She concludes that the growing number of trading partners will fur- ther complicate supply chains, and rising trade obligations will exert downward pressure on the United States' heightened standards. This article discusses the new FSMA rules, identifies specific challenges, and offers tangible solutions to guide final rulemaking. In light of pressure by the World Trade Organization (WTO), Regional Trade Agreements (RTA ), and Mega-regionals, U.S. food safety regulators need to ensure that the higher food safety standard is not compromised. If the FSMA rules are able to with- stand global challenges, these rules have the potential to serve as the global standard for food safety. I. INTRODUCTION Food is about trust - when consumers buy food, they assume they are eating something that nourishes, not injures. While the U.S. food supply is among the safest around the globe, rising global trade has made the world more vulnerable to outbreaks of disease caused by contaminated food.' An * Associate Professor of Law, University of Colorado Law School. J.D., Northwestern University; Ph.D., Purdue University (Agricultural Economics). For their thoughtful comments on earlier drafts, I thank Susan Franck, Sungjoon Cho, David Zaring, Claire Kelly, Aaron Fellmeth, Victor Fleischer, as well as workshop participants at the American Association of International Law, Economic Interest Group Roundtable, the University of Colorado Institute of Behavioral Science Institutions Workshop, and the University of Colorado Law School Works in Progress. 1 World Prone To Food-Borne Disease Outbreaks, Crry PRESS (Oct. 13, 2011, 7:14 AM), http://www.citypress.co.za/news/world-prone-to-food-borne-disease-outbreaks-20111013/, archived at http://perma.cc/YPW4-444K (quoting a World Health Organization representative

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