When President Obama signed the Food Safety Modernization Act (FSMA) into law in January 2011, it was considered a long-fought, but significant and bipartisan victory to update the Food and Drug Administration’s authority and oversight of the food supply. While much of the wrangling over the language of the law was made public, through media coverage of Congressional hearings for example, the ensuing industry influence over implementation of the law has been subject to far less public scrutiny (with the exception of FDA’s unlawful delay of FSMA’s critical implementing regulations, which Center for Food Safety has successfully sued over).
As a recent report from the Sunlight Foundation illuminates, industry lobbyists have been on the Food and Drug Administration’s doorsteps from the beginning, even more so since FSMA passed, influencing the agency’s implementation of the law. Not content to pay their way into the public forum of legislation, industry groups also devote significant time and resources to influencing rulemaking and post-food-crisis management. Sunlight explains that:
Using FOIA, Sunlight obtained memoranda of meetings for the FDA's Center for Food Safety and Applied Nutrition (CFSAN) over a two year period, yielded dozens of industry contacts with the regulators who oversee them. Industry group representatives were present at meetings four times as often as representatives of consumer interests.
Winning the prize for the most frequent visitor to the FDA over the two-year period was Miriam Guggenheim of the law firm Covington & Burling. Thanks to her efforts, members of the American Bakers Association (ABA) will likely be exempt from FSMA’s proposed regulations regulating warehouse temperatures, measures the FDA says “prevent problems that can cause foodborne illness.” The exemption, the ABA press release notes, “was allowed under language in FSMA that was included at ABA’s recommendation.” Well done.
Guggenheim also accompanied representatives from Mars candy when the company wanted a faster approval processes for food additives, and held telephone calls with the FDA about “bottled water labeling,” among other client needs. But oddly, despite Guggenheim being identified as a frequent visitor to FDA, according to Sunlight, she has not been registered as a lobbyist since 2010, before FSMA even passed. How so? Sunlight says it just shows the weakness of our lobbying disclosure rules, and a lack of enforcement:
Guggenheim's work on behalf of food industry heavyweights shows how much of the influence game in Washington still remains in the shadows. Not everyone who pushes private agendas in Congress and at regulatory agencies registers to lobby. Those who are registered to lobby disclose minimal information about their activities.
The only way Sunlight was able to obtain the information it did was because “agencies keep track of which special interests come calling and why”, however “those records are rarely made available to the public without a Freedom of Information Act request.” The documents Sunlight obtained from FDA revealed a wide variety of lobbying by industry, in no way limited to the FSMA lawmaking process. Several issues reveal an interesting cause and effect pattern: Soon after an industry-tarnishing report appears in the media, meetings at the FDA ensue.
Take for example, highly caffeinated energy drinks, which have caused a lot of controversy lately. On November 14, 2012 the New York Times ran a story with the headline, “Caffeinated Drink Cited in Reports of 13 Deaths.” The next day, D.C. lawmakers, led by U.S. Senators Dick Durbin (D-IL) and Richard Blumenthal (D-CT) once again called on the FDA to investigate the safety of energy drinks, following up on letters the lawmakers sent in April and September of that year. “We urge the agency,” the Senators wrote, “to assert its regulatory authority over caffeine levels in energy drinks marketed as beverages.”
Just two weeks later, on November 30, 2012, Guggenheim and three of her Covington colleagues, as well as Thomas P. Davis, the Chief Scientific Officer for their client, Monster Energy Drink, sat down with thirteen members of the FDA. The description of the discussion in the official Memorandum is vague, but proving the drinks were safe was clearly a top priority. Dr. Davis provided “studies relating to the safety of Monster energy drink ingredients” and “emphasized the safety of Monster’s products.”
Almost a month and a half later, on January 11, 2013, the Times ran another story on the dangers of energy drinks, this one with the headline, “More Emergency Visits Linked to Energy Drinks.” Just four days later, on January 15, FDA hosted another meeting with energy drink insiders, this time with Kraft Foods representatives, on the topic of their new energy beverage, MiO Liquid Water Enhancer (which was not specifically named in the Times article).
Another hot topic in the news has been arsenic in rice. A Consumer Reports study published on September 19, 2012 revealed that organic rice, baby cereal, and numerous other rice products contained arsenic, often “at worrisome levels.” Within a few weeks, on November 8, 2012, members of the Organic Trade Association, rice producer Lundberg Family Farms, California Natural Products, USA Rice, and others met with representatives from FDA’s Center for Food Safety and Applied Nutrition. The subject, according to the memorandum: “Arsenic in Rice.”
That large corporate interests lobby our lawmakers to legislate (or not legislate) in their favor is nothing new. But the Sunlight report shines a light on a dark corner of the workings of the Big Food lobby that—in part thanks to the complicated FOIA process—we rarely get to see. A review of the agency records shows that while the FDA also takes meetings with consumer interest groups, the vast majority of the agency’s schedule is comprised of meetings with large corporations such as Coca-Cola and Campbell Soup Company, along with major trade groups, including the National Chicken Council, the Grocery Manufacturers Association, and the American Spice Trade Association (turmeric and cardamom need lobbyists, too). According to Sunlight, consumer groups were present at only 18 percent of the meetings, versus industry representatives showing up 78 percent of the time.
So how can those of us not adept at filing regular FOIA requests even know these meetings with government officials in charge of food safety are happening? The report’s author, Nancy Watzman, told me that federal lobbying disclosure rules are “very porous, rely on the honor system, and give a very incomplete picture of what’s really going on.” Given these weaknesses, Sunlight’s government affairs consultant (and former legislative assistant to John Kerry) recommends several improvements, including a requirement that all lobbyists report the name of the official contacted by the lobbyist, a summary of issue discussed, specific actions requested, and the name of the client. This sort of transparency Sunlight says, would have an important impact on democracy:
Had these principles been in place while the lobbying for an exemption to the food safety rules had been ongoing, it would not have taken the relentless digging of an intrepid reporter to uncover who was shaping the rules. More importantly, real time, public disclosure of industry’s efforts for special treatment is paramount for healthy debate.