Appeal to OMB Director to Put Food Safety First
May 21, 2010
Mr. Peter Orszag
Office of Management & Budget
Executive Office of the President
1650 Pennsylvania Avenue, N.W.
Washington, D.C. 20503
Dear Mr. Orszag:
We are writing to offer a response to the May 12, 2010 letter you recently received from members of the California congressional delegation concerning the proposed rules to regulate catfish.
We are deeply concerned that many of the statements made in the letter exaggerate the ramifications of the proposed rule, confuse statistics pertaining to all seafood with those relating to catfish, and misstate some current federal policies. As a result, we believe the following point by point rebuttal will help you better understand this food safety issue.
In paragraph two, there is this statement:
In 2002 Congress defined “catfish” as the domestic species Ictaluridae (P.L. 107-171: Section 10806). Since that point, there has been an increasing demand in California and around the country for Pangasius, an affordable, mild, white fish from Asia. These fish are marketed in the United States as basa, tra or swai.
Response:
What the California delegation fails to point out is that the 2002 law dealt with product labeling. The proposed rule before you focuses on food safety. By its very nature, a product labeling bill is narrow in scope. The opposite is true for legislation designed to protect the food consumed by the general public. Here, the goal should be as broad as necessary to ensure food safety. As I’m sure you know, the federal government sponsors an initiative called ITIS (Interagency Taxonomic Information System). The ITIS is a partnership of federal agencies that serves as the federal government’s clearinghouse on all things taxonomic. According to ITIS, once you work your way through Kingdom, Phylum, and Class, you come to the Order called Siluriformes, which the ITIS refers to as “catfishes and silures.” Within this Order are 36 Families, including the Family of Ictaluridae (which is what is harvested domestically and in many parts of China) and the Family of Pangasiidae (which is what is imported from Southeast Asia). The California delegation did not point out that there are over 3,000 documented species of Siluriformes catfish around the world. So far, at least, more than 100 are believed to have commercial promise. Section 11016 of the 2008 Farm Bill amended the Federal Meat Inspection Act (FMIA) to make catfish an “amenable species,” and requiring the USDA Secretary to define catfish for the purposes of FMIA, and to promulgate rules for a catfish inspection program under FMIA. “Catfish” is the term used throughout the legislation. In the Joint Explanatory Statement of the Committee of Conference (CR H3409-3700), there is this: “The provision requires USDA to provide inspection activities under the FMIA for farm raised catfish, by adding catfish to the list of “amenable species.” Then there is this: “Additional species of fish and shellfish are not addressed in this amendment; however, the Managers note that the Secretary has underlying authority within the FMIA to amend the definition of amenable species as he considers necessary and appropriate.” Please note two points about this language. First, the use of the term “farm raised.” Pangasiidae catfish is “farm raised” just like Ictaluridae catfish. Second, the mention of “fish and shellfish.” Here again, the authors of the 2008 Farm Bill imply broad and expansive coverage of this act by USDA (even beyond catfish).
It is worth noting that Vietnamese basa or tra imports are widely substituted for U.S. farm-raised catfish. This fish is still frequently sold in the United States as catfish, despite the 2002 labeling law, something recognized by the U.S. International Trade Commission as recently as June 2009. The labeling law, notably, does not reach the restaurant level, where the Vietnamese fish are still menued as catfish or identified on menus in ways intended to indicate catfish. Thus, an inspection regime that includes only one family of the order Siluriformes, and excludes Vietnamese basa or tra, would undermine the effectiveness and purpose of the FMIA and put the American consumer at unnecessary risk.
In Paragraph 3, there is this statement:
This rule would be damaging to our trade relationship with Asia.
Response:
There is no evidence to back up this statement. Exports of catfish to the United States from Vietnam represent only four percent of total Vietnamese catfish exports. The vast majority of Vietnamese catfish exports go to Europe and other Asian markets. Moreover, exports to the US from Vietnam are a recent development with a surge occurring over the past several years. Besides, with regard to any damage to our trade relations with Asia as a whole: to the contrary, if defined as only the Ictaluridae family as suggested in this letter, then China will be covered by the rule and not Vietnam, since most catfish China has shipped to the US are from the Ictaluridae family. This would be an absurd result that would cause significant tension with China as that country would be singled out among all countries exporting catfish to the US. And there would be no food safety basis for treating China differently than Vietnam. This could cause significant tension in relations with China. Besides, over the past decade, Vietnam has enjoyed a rising trade surplus with the United States for all goods. This trade surplus grew from $317 million in 1999 to more than $10 billion in 2008. Imports of Vietnamese basa or tra are only a small part of this overall trading relationship. Regardless, it would be spurious to argue that Vietnamese catfish should be exempt from legitimate US food safety standards simply to encourage growth in Vietnam’s trade surplus.
The other point, which is the most serious, is this: the only reason for the California delegation to be worried about any putative trade problems is if the catfish coming from Southeast Asia could not meet the food safety requirements of USDA. If the catfish from Southeast Asia were safe to eat, then those countries have nothing to worry about. Trade will continue unabated. What is worrisome is that Senator Feinstein and her colleagues would, apparently, prefer to compromise the safety of food consumed by Americans all over this country.
In Paragraph 3, there are these statements:
This rule would be detrimental for California businesses [and] millions of pounds of pangasius are currently imported through California ports.
Response:
Again, California businesses have nothing to fear if the catfish from Southeast Asia is safe. Apparently, the California delegation has reason to believe it is not safe. And, apparently, they are willing to allow Americans to consume unsafe catfish in order to placate California businesses. From the perspective of what Congress intended to do with the 2008 Farm Bill – enhance the safety of catfish for the American consumer – this defeatist attitude on the part of the California delegation is quite alarming. And, besides, who is to say that if catfish from China and/or Southeast Asia were determined to be unsafe, that these California businesses wouldn’t find other, safe, fish to import into this country. What is also clear is that California ports handle millions of pounds of seafood from countries all over the world; if in fact the exportation of catfish from Vietnam is halted because it is unsafe, there is no evidence to support the claim that California jobs will be lost because one small percentage of overall imports handled by California workers is reduced.
We also note that the letter does not take into account the impact that unsafe imported fish could have on US aquaculture if an outbreak were attributed to imported catfish and a disabling food safety scare about catfish were created. All other catfish would be hurt by such a scare, domestic and imported. Consider the devastating impact on American tomato growers over food safety concerns caused before the recent outbreak was attributed to jalapeño peppers. Inspected catfish and the entire industry could be harmed by uninspected product brought in from species in any of the other 35 families if only Ictaluridae were defined as catfish for FSIS’ food safety program.
In Paragraph 4, there is this statement:
An equivalency agreement would take at least 5-7 years.
Response:
This is a worst case scenario not borne out by past precedent or supported by the facts of this situation. In this case imports are already occurring at the time of the equivalency determination, which is a unique situation for an equivalency determination. The exporting countries have been developing and improving food safety procedures at a rapid pace in recent years. There is no reason to believe that the equivalency agreement would take this length of time. Moreover, the approach being suggested here, i.e., that Ictaluridae only would be subject to FSIS inspection and food safety requirements, would result in FSIS monitoring of domestic and imports from China, but not imports from Vietnam, Thailand, or other countries that might ship Siluriformes to the US. This would sew confusion among consumers and disrupt commerce and not maintain a smooth and safe food supply. Besides, as the labeling data shows, the distinction is poorly enforced and likely unenforceable, so that to protect consumers the monitoring must occur at the Siliuformes order. Moreover, the food safety data for the same reasons is collected at the order level. Thus, in order to have a rationale food safety monitoring system, especially if the US wishes to maintain consistency with science and the rest of the world, this would be the correct approach. The length of time for an equivalency determination often is dictated by the ability of the exporting country to provide FSIS with the proper documents to substantiate that their food safety system can meet US standards. If countries from Southeast Asia can demonstrate they are harvesting and processing catfish in a safe way, then equivalency will be a breeze for them.
In Paragraph 4, there is this statement:
Potential for serious impact to US economy if Vietnam pursues WTO retaliations
Response:
Once again, this is a highly speculative statement. We are very concerned that relations be maintained and fostered with a struggling economy like Vietnam’s. Helping to improve their living standard will not only help millions of impoverished Vietnamese, it will help enlarge American markets. Nevertheless, it is also worth noting that Vietnamese exports to the US constitute a very, very small percentage of their total exports to this country. Even if the over-reaching and unreasonable claims that Vietnamese exports of catfish to the US would be completely shut down, the change would hardly affect commerce between the two nations. To suggest that food safety be compromised on this basis is to put risk of food borne illness for American and Vietnamese citizens below commerce. As for claims made to WTO, there is no evidence that Vietnam would decide to bring such a case. There is ample food safety risk evidence as established by a peer reviewed FSIS risk assessment. Vietnam would not bring a losing case. Even if they did bring a case, the chances are low that they would win. Finally, the impact on the Vietnamese economy of losing exports to the US is so small that the retaliation level would be extremely low. What this administration has to fear is WTO action by China if a decision is made to distinguish catfish at the family level instead of the order level, and go against what science is telling you and what your scientists at FSIS are telling you.
Consider US international trade obligations. Vietnamese basa or tra would be subject to the same inspection standards required of U.S. farm-raised catfish, consistent with World Trade Organization (WTO) rules. Inspection standards implemented under the FMIA are already in use for imported meat and other products. In accordance with the WTO’s Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), these standards are based on sound scientific principles and are consistent with relevant international guidelines. Moreover, risk assessment determinations, which are made to identify a food safety risk requiring inspection or imposition of standards, are based on available scientific techniques and data. Inspections of domestic catfish and imported catfish substitutes under the FMIA would also be based on scientifically-supported standards of necessity and would be transparent, fair, and nondiscriminatory.
In Paragraph 5, there is this statement:
Hospitals reported only 10 illnesses attributable to e coli, listeria, or salmonella from seafood.
Response:
This is surprising argument, since we assume anyone familiar with food safety analysis knows that risk assessment has three components: environmental chemicals, antibiotic residues, and microbial pathogens. Focusing solely on salmonella ignores other threats to the health and safety of American consumers.
And besides, using the 2006 data is inadequate for Vietnam as a surge in imports from Vietnam occurred after this date. Basing a determination of low risk on 2006 pathogen data only is not credible or responsible. We are disappointed that food safety analysis would be approached in this cavalier and limited manner. Seafood is a high risk category when considered holistically. Import alerts and regulation globally on seafood bears this out. Nevertheless, CDC will readily admit that its attribution data is deficient. It relies on consumers first going to a doctor; the doctor investigation whether the illness could be attributed to a food item; the doctor reporting it to a local and/or state health department; an epidemiological investigation conducted; CDC concluding that the illness is attributable to certain food item. While the CDC has not officially determined many cases of food borne illness attributed to seafood, CSPI has and this is from its Outbreak Alert data base.
In Paragraph 5, there is this statement:
FDA successfully ensures the safety of seafood through the Hazard Analysis and Critical Control Point (HACCP) process.
Response:
With this comment, the California Delegation is clearly misleading you. Due to the different regulatory approaches at FDA and USDA, the meat, poultry and seafood HACCP systems share almost as many differences as similarities. For example, while USDA requires both frequent inspection and product testing for meat and poultry products, FDA requires neither for seafood products. That makes seafood HACCP an industry honor system of dubious value. FDA and FSIS differ on more than just the applicability of their HACCP programs. Unlike meat and poultry plants, which have statutorily-mandated daily on-site inspections by FSIS, FDA’s inspections of seafood plants are infrequent, if at all.
Also, it is reasonable to infer from this statement that the California operations do not avail themselves and their consumers of the protection available from NOAA Fisheries, which provides voluntary, fee-for-service inspection and grading for seafood including catfish. Food safety for catfish will not be an option when Section 11016 of the 2008 Farm Bill is implemented. We are concerned that the Californians are willing to risk their own business and ours by this cavalier attitude.
In Paragraph 6, there is this statement:
It is instructive to learn from the experience in other countries which have also thoroughly investigated the safety of Vietnam’s exports.
Response:
If this is the case, then Vietnam has nothing to fear from the FSIS equivalency process. That being said, we are taken aback that Members of Congress would suggest that we rely on other countries to regulate what we eat in this country. We are wondering if they are suggesting that we jettison the USDA inspection of beef, pork, and poultry in favor of letting the Europeans do it.
In Paragraph 7, there is this statement:
We urge you to listen to the views of the experts at these agencies (State, USTR, and Commerce) and our serious concerns about the economic and trade impact in California.
Response:
In reading this entire seventh paragraph, you would get the impression that OMB is writing legislation, that the 2008 Farm Bill had never passed the Congress. The question is how to implement the law, which was surely passed as a food safety issue. Representatives from State, USTR, and Commerce are not scientists, nor are they food safety experts. Congress has tasked FSIS to be the science agency on this matter and FSIS should be making the determination of food safety risk. FSIS, FDA and NOAA Fisheries have many MOUs and other working arrangements ensuring that they coordinate their food safety efforts effectively, including in establishments in which they have overlapping jurisdiction. Congress mandated that FSIS issue a final regulation by the end of 2009 and now five months later even the proposed rule has not been published. Under current law, FSIS is required to issue a final regulation to implement a catfish inspection program. FSIS took the steps, conducted a risk assessment and then was stopped by non-science agencies in even publishing its proposal and peer-reviewed science for comments.
Thank you for your consideration of these points. A robust food safety system that is based on sound scientific principles and that applies equally to domestic and imported products is not only good agricultural and food safety policy, but is also good trade policy. We urge you to support an inclusive inspection rule for catfish.
Sincerely,
Joey Lowery
President, Catfish Farmers of America
