1. Why We Have Less Food Safety Than We Want
Neal D. Fortin, J.D Institute for Food Laws & Regulations Michigan State University
Why We Have Less Food Safety Than We Want
Neal Fortin
Director and Professor
Institute for Food Laws & Regulations
Michigan State University
Presenter’s level of expertise in the subject: Briefly state credentials in this area; or, why participants should listen to you.
Overview of the past year in food law.
© 2008 Neal Fortin

2. Why We Have Less Food Safety Than We Want
Neal D. Fortin, J.D Institute for Food Laws & Regulations Michigan State University
Why We Have Less Food Safety Than We Want
Apr. 10, 2008
OUTLINE OF TALK
The Under Appreciated Burden
Market Failure on Food Safety
The Limitations of Lawsuits
Government Regulatory Limits
What Can Do Done

3. Foodborne Illnesses Estimates
Neal D. Fortin, J.D Institute for Food Laws & Regulations Michigan State University
Why We Have Less Food Safety Than We Want
Apr. 10, 2008
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.:

4. Mild Illnesses Discounted
Neal D. Fortin, J.D Institute for Food Laws & Regulations Michigan State University
Why We Have Less Food Safety Than We Want
Apr. 10, 2008
Mild Illnesses Discounted
Discounted: 53 Million cases of diarrhea annually
If < 1 day of diarrhea, and
No more serious symptoms

5. Why We Have Less Food Safety Than We Want
Neal D. Fortin, J.D Institute for Food Laws & Regulations Michigan State University
Why We Have Less Food Safety Than We Want
Apr. 10, 2008
Underestimated Costs
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, Shopping for Food Safety and the Public Trust: What Supply Chain Stakeholders Need to Know About Consumer Attitudes, Food Safety Mag (Jun. /Jul. 2006).

6. Economic Burden of Foodborne Illness
$357 billion annually
Willingness to pay
(US alone)
Loss of Productivity
Healthcare Costs
Not loss of market share
(lost consumer confidence)
Not including Lawsuits
Tanya Roberts,  WTP estimates of the societal costs of U.S. foodborne illness,(to be pub in Am. J. Ag. Econ.)
The Economic cost of foodborne illness is up to $83 Billion in the U.S.
That includes Loss of Productivity and Medical Expenses but not lawsuits.
An important consideration is the loss of markets when consumer confidence is eroded in a product or commodity.

7. The Human Face of Foodborne Illness
Neal D. Fortin, J.D Institute for Food Laws & Regulations Michigan State University
Why We Have Less Food Safety Than We Want
Apr. 10, 2008
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 before he died

8. Why We Have Less Food Safety Than We Want
Neal D. Fortin, J.D Institute for Food Laws & Regulations Michigan State University
Why We Have Less Food Safety Than We Want
Apr. 10, 2008
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)

9. Why We Have Less Food Safety Than We Want
Neal D. Fortin, J.D Institute for Food Laws & Regulations Michigan State University
Why We Have Less Food Safety Than We Want
Apr. 10, 2008
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

10. Why We Have Less Food Safety Than We Want
Apr. 10, 2008
Competition is fierce
Cost-cutting vital
Companies must compete

11. Strict Liability is Not Strict Enough — Limits of Tort Law
Neal D. Fortin, J.D Institute for Food Laws & Regulations Michigan State University
Why We Have Less Food Safety Than We Want
Apr. 10, 2008
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

12. Imperfect Information on Causation & Food Safety
Neal D. Fortin, J.D Institute for Food Laws & Regulations Michigan State University
Why We Have Less Food Safety Than We Want
Apr. 10, 2008
Lawsuit
Organism isolated
Case investigated
Identification of source
Stool sample etc analyzed
Doctor requests specimen
Diagnosed with foodborne illness
Seeks medical attention
Develops acute illness
Acute illness ~ 76 million /year
Mild illness (no economic injury) > 53 Million / year
Exposures to a foodborne pathogen - 1 billion / year ?
Imperfect Information on Causation & Food Safety
What food or drink?
Victim’s stool not tested
What bacteria or virus?
Apparent isolated case
No health department investigation

13. Less Than 1 in a Million Chance of a Trial for Foodborne Illness
Neal D. Fortin, J.D Institute for Food Laws & Regulations Michigan State University
Why We Have Less Food Safety Than We Want
Apr. 10, 2008
Lawsuit
Organism isolated
Case investigated
Identification of source
Stool sample etc analyzed
Doctor requests specimen
Diagnosed with foodborne illness
Seeks medical attention
Develops acute illness
Acute illness ~ 76 million /year
Mild illness (no economic injury) > 53 Million / year
Exposures to a foodborne pathogen - 1 billion / year ?
Trial ~ 0.2 / 1 million acute illnesses
Case ~ 5 / 1 million acute illnesses
Less Than 1 in a Million Chance of a Trial for Foodborne Illness
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

14. Why We Have Less Food Safety Than We Want
Neal D. Fortin, J.D Institute for Food Laws & Regulations Michigan State University
Why We Have Less Food Safety Than We Want
Apr. 10, 2008
Odds of facing trial for foodborne illness = ~0.2/million
Odds of being struck by lightning = 2.5/million each year
This is why there are exemplary damages

15. Trust Me, I’m From the Government and Here to Help You
Neal D. Fortin, J.D Institute for Food Laws & Regulations Michigan State University
Why We Have Less Food Safety Than We Want
Trust Me, I’m From the Government and Here to Help You
Market inefficiency
classic situation where government 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 , Vol. 58:4 (2003).

16. Why We Have Less Food Safety Than We Want
Neal D. Fortin, J.D Institute for Food Laws & Regulations Michigan State University
Why We Have Less Food Safety Than We Want
Apr. 10, 2008
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

17. Why We Have Less Food Safety Than We Want
Neal D. Fortin, J.D Institute for Food Laws & Regulations Michigan State University
Why We Have Less Food Safety Than We Want
Apr. 10, 2008
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 , Vol. 58:4 (2003)]

18. Why We Have Less Food Safety Than We Want
Neal D. Fortin, J.D Institute for Food Laws & Regulations Michigan State University
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 (1990)

19. Neal D. Fortin, J.D Institute for Food Laws & Regulations Michigan State University
Why We Have Less Food Safety Than We Want
Apr. 10, 2008
Winner 2003 ADEC National Excellence in Distance Education Award
United States
European Union
Asia
Canada
Latin America
Courses
International Food Laws & Regulations (Overview Course)
Codex Alimentarius
OIE (World Animal Health)
IPPC (International Plant Protection)

20. 2006 Institute for Food Laws & Regulations – MSU
Why We Have Less Food Safety Than We Want
Apr. 10, 2008
Dr. Vince Hegarty
Michael Roberts Attorney / Lead Instructor “Asia”
John Blakney
Dr. Gerald Moy WHO “Codex”
Paul Allen “UK / EU”
Dr. David Jukes Lead Instructor “UK / EU”
Paul O'Rourke Attorney “EU / Ireland”
Masako Hashimoto “Japan - International”
Attorney / Lead Instructors “Canada”
             
                            
                            
Neal Fortin Director / Lead Instructor “United States”
Charles Cockbill “UK / EU”
International Food Laws Online Certificate Program – Instructors
Dietrich Gorny “EU / Germany”
Mary Anne Verleger “Course Manager”
Rebeca López-Garcia Lead Instructor “Latin America”
William Marler Attorney “United States”
Al Hafner “United States / Michigan”
Raul Boccone Uruguay “Latin America”
Gretchen Stanton WTO “Switzerland”
J. Ralph Blanchfield “UK”
Nicole Coutrelis Attorney “France / EU”
Institute for Food Laws & Regulations – MSU
2006

21. 2006 Institute for Food Laws & Regulations – MSU
Why We Have Less Food Safety Than We Want
Apr. 10, 2008
Theresa Bernardo Lead Instructor OIE Course
Ian McDonell NAPPO “Canada”
Lonnie King “United States”
Bernard Vallat DG OIE “France”
Gerald Moy WHO “Codex”
Veronique Bellemain ENSV “France”
James Scudamore “UK ”
Ian Smith DG - EPPO “France ”
Alex Thiermann OIE “France”
John Hedley Lead Instructor “New Zealand”
             
                            
                            
                      
Reinouw Bast-Tjeerde CFIA “Canada”
Karim Ben Jebara OIE “France”
International Food Laws Online Certificate Program – Instructors
Cristobal Zepeda “United States ”
Eva-Maria Bernoth “Australia”
Francois G. LeGall “United States”
Robert L. Griffin USDA / APHIS / PPQ “United States”
Ron A. Sequeira USDA / APHIS/ PPQ “United States”
David Wilson “France”
Jens-Georg Unger “Germany”
William P. Roberts “Australia”
Bob Ikin Australia
Stephen Ogden “New Zealand”
David Bayvel “New Zealand”
Institute for Food Laws & Regulations – MSU
2006

22. Why We Have Less Food Safety Than We Want
Neal D. Fortin, J.D Institute for Food Laws & Regulations Michigan State University
Why We Have Less Food Safety Than We Want
Apr. 10, 2008
Thank you
Neal Fortin
Professor and Director
Institute for Food Laws & Regulations
Michigan State University