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Bill Adair
By Bill Adair December 10, 2007

SUMMARY: Hillary Clinton is right about the tangled rules of federal food inspections. If you think the sandwich rules are silly, check out the guidelines for pepperoni pizza.

Hillary Clinton has made a campaign issue out of a ham and cheese sandwich.

In a speech in Shenandoah, Iowa, Clinton said the federal government "is not taking the steps necessary to protect us" because of inadequate inspections of toys and food.

"To restore and repair the broken food system, we need to get over the fact that we have 15 agencies administering more than 30 laws. That's absurd," she said in the Nov. 20, 2007, speech. "We have gaps and waste and overlap."

She cited this example: "A ham and cheese sandwich on one slice of bread is the responsibility of the U.S. Department of Agriculture, which inspects manufacturers daily. But a ham and cheese sandwich on two slices of bread is the responsibility of the Food and Drug Administration, which inspects manufacturers about once every five years."

To find out if her sandwich example was correct, we turned to government reports on food safety, interviewed the head of the USDA's food inspection service and studied the government's Food Standards and Labeling Policy Book, a fascinating manual that provides rules for Wiener schnitzel ("a veal cutlet prepared by dipping in egg, flour and bread crumbs, and frying to a golden brown"), whole hog sausage ("Must contain all primal parts of a hog. Hearts and tongues, in natural proportions, are permitted ingredients ...") and vinegar pickle ("sausage in vinegar pickle is approved with the understanding that sausage is completely covered with pickle and that the pickle has a pH level not higher than 4.5"). The manual also spells out which foods are under USDA jurisdiction.

We found that Clinton is correct about the regulation of sandwiches — indeed, the ham and cheese example is often cited by critics — and she is correct about the big disparity in inspections by the two agencies.

In an interview with PolitiFact last week, Richard Raymond, the USDA's undersecretary for food safety, acknowledged that the sandwich rule is silly. "There is no rationale or logic that I can explain to anybody," he said. "It defies logic."

He said the rules don't affect the safety of the nation's food supply, but said, "it's an issue that makes it look like we don't know what we're doing."

Raymond didn't know the origin of the sandwich rule, but others suggested that the volume of meat might have been the key factor in whether it was FDA or USDA jurisdiction. (The rule only applies to plants that assemble sandwiches for retail stores like 7-Elevens. Sandwiches made-to-order at a deli or a Subway store are not subject to the inspections, Raymond said.)

To understand the strange bureaucratic turf of food inspections, you have to go back to the 1906 publication of Upton Sinclair's novel The Jungle , which described horrific conditions at meat plants. That book, still required reading in many high school English classes, had such impact that it persuaded Congress and President Theodore Roosevelt to enact a law requiring meat inspections. Roosevelt had called for a law that would require oversight "from the hoof to the can."

Since then, the government has put considerable emphasis on meat and poultry, which fall under the USDA. The agency's 7,500 inspectors and veterinarians conduct continuous daily inspections of the nation's meat and poultry plants. The law requires USDA inspections before the products can be sold. But other foods have not gotten the same scrutiny. Most are regulated by the FDA, but the law does not mandate inspection frequencies, according to a report by the Government Accountability Office.

The report confirms that Clinton is correct that, on average, the FDA inspects the 57,000 food plants under its jurisdiction about once every five years.

"There is no rhyme or reason to how we regulate food today in the U.S.," said Caroline Smith DeWaal, food safety director for the Center for Science in the Public Interest. "It's based on antiquated laws and bifurcated agencies. The current food safety system doesn't protect the public."

Without a mandate for regular inspections, the FDA hasn't gotten enough money to do them more frequently. Smith DeWaal said the agency is "really starving for resources."

Her complaints are echoed in a new report from an FDA advisory panel. The November 2007 report for the agency's Science Board said the FDA is so overburdened and underfunded that it can't effectively conduct routine surveillance.

"The nation's food supply is at risk," the report said.

To fix the problems, Clinton and Sen. John Edwards have called for a single federal agency to oversee safety of all foods. The Institute of Medicine and the National Research Council made a similar recommendation in 1998, saying, "a model food safety system should have a unified mission and a single official who is responsible for food safety at the federal level." Members of Congress have for years tried to create such an agency, but their bills have yet to pass.

Raymond, the Bush administration official in charge of USDA inspections, said a unified agency isn't the perfect solution.

"Big isn't always better. Sometimes smaller is swifter and more nimble," said Raymond. He said a single agency might end up drawing resources from meat inspections to pay for other obligations. Given that such a change won't happen any time soon, the USDA and FDA officials have discussed how they can eliminate jurisdictional silliness like the sandwich regulations. They met with food industry leaders in Chicago about two years ago and said they would propose new rules that made more sense. But there has been little progress since then.

So in the meantime, the inspections of sandwiches — and many other foods — will be divvied up by the USDA and FDA based on meat content and other factors that even the agencies' top officials don't understand.

In his speeches, Raymond notes that the pizza rules are as silly as the sandwich standards. A frozen cheese pizza is the responsibility of the FDA — even if it's "some crazy California pizza" with a shrimp topping, he said.

But if it's a pepperoni pizza, it's subject to the USDA's inspections because of the meat. (In fact, he said, the ingredients would actually get inspected several times — when the hog is slaughtered, when the pepperoni is manufactured and after it is added to the pizza.) The USDA also inspects pizzas with sausage, bacon and hamburger.

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