In Pursuit of Seafood Traceability Standards: Legislative Inaction or a Lack of Administrative Focus?

Posted on December 19, 2012 in Administrative Law, Environmental Law | Comments Off

The difficulty faced by consumers in obtaining accurate information regarding the species, source, and quality of their seafood has become an issue of growing concern. Indeed, seafood fraud appears to be a substantial problem in the United States. Some recent studies suggest that common species such as Atlantic cod, red snapper, and wild salmon are mislabeled as frequently as 25 to 70 percent of the time, disguising less desirable and less expensive species. The consequences of mislabeled seafood reach beyond the financial exploitation of consumers however, with broader implications for food safety, sustainability, and fisheries management. It is no surprise then that there has been increasing demand for comprehensive seafood traceability standards to provide accurate information about the species, origin, and methods of production of seafood sold in the U.S.

Some relevant legislative action aimed at addressing seafood fraud has already commenced. Namely, H. R. 6200, or the ‘Safety And Fraud Enforcement for Seafood Act,’ was introduced in July, 2012 and aims to strengthen consumer protection for commercially marketed seafood. In a broad sense, the bill calls for increased coordination between federal agencies that already play a role in regulating the commercial seafood industry—mainly the National Oceanic and Atmospheric Administration (NOAA) and the Food and Drug Administration (FDA). Among other things, H. R. 6200 requires the two agencies to implement seafood traceability standards involving the collection of information such as the market and scientific names of particular species, production methods utilized, the geographic catch or aquaculture area, and processing which could affect product weight. Furthermore, this information is to “be included in the labeling of, or otherwise accompany, seafood through processing, distribution, and final sale.” What H. R. 6200 does not do, however, is create any substantial new authority in addition to that already possessed by NOAA or the FDA and operates more as impetus for agency action than a sweeping legislative empowerment. This being the case, the question that naturally follows is whether legislation is truly necessary to obtain meaningful reform in the policy of combatting seafood fraud?

Clearly, the current regulatory framework as it is being utilized is not effective. Criticism has, in part, focused on the fragmentation of authority between federal agencies and the incongruous amalgam of statues from which that authority is derived. As recognized by H. R. 6200, relevant authority is largely divided between the Department of Health and Human Services as exercised through the FDA and the Department of Commerce as exercised through NOAA. It is primarily the responsibility of the FDA to ensure seafood sold in the United States is safe and labeled accurately, deriving its authority largely from the Food, Drug and Cosmetics Act of 1983. The Department of Health and Human Services is responsible for policing “false advertising of seafood products,” a task which it largely accomplishes through NOAA’s voluntary seafood inspection program and prosecutes under the Lacy Act.

It appears, however, that fragmented authority does not necessarily translate into a lack of regulatory capacity. Rather, there are efforts that could be undertaken by both NOAA and the FDA to combat seafood fraud more effectively without legislative directive. For example, the FDA’s Hazard Analysis & Critical Control Points program could be used to more effectively screen seafood products for fraud. Currently however, the FDA only inspects about two percent of imported seafood under this program and only .001 percent is screened for seafood fraud. NOAA’s voluntary seafood inspection program, on the other hand, sees about one fifth of the total seafood sold in the United States each year. However, the program does not include any comprehensive record keeping requirements. Additionally, given the program’s voluntary nature, it is unlikely to detect many egregious offenders who are under no obligation participate.
Not only are there seafood inspection programs already in existence in some form or another at both the FDA and NOAA, there is existing technology available to enable inspectors to easily identify mislabeled seafood. The most promising possibility is the use of DNA sequencing to definitively identify a fish species even after substantial processing has taken place. An international DNA sequencing project called the Barcode of Life maintains a database of about 8,000 varieties of fish which labs can utilize to verify seafood shipments for as little as one dollar per sample. Furthermore, though testing must currently take place in the lab, scientists predict that desktop-based DNA sequencers and eventually handheld field sequencers could be developed in as little as ten years.

The primary problem, it seems, is one of administrative prerogative. The current regulatory framework appears to be robust enough to allow the FDA and NOAA to develop stronger safeguards to prevent seafood fraud. The FDA’s ability to dictate food labeling requirements could certainly be used to track seafood from net to table if inspection efforts from either agency were adequately utilized to collect and verify source and species information. Undoubtedly, such an effort would require a greater cooperation between the FDA and NOAA as well as increased resources to implement an effective seafood traceability system. To be sure, securing adequate funding for such an endeavor would pose challenges in the modern reality of scarce government resources. However, achieving federal seafood traceability standards does not appear to hinge solely on legislative action. Rather, an administration that made seafood traceability a priority would find that the basic infrastructure to increase consumer protection and more effectively combat seafood fraud already exists but has yet to be fully utilized.

–Luke Middleton is an MJEAL General Member. He can be reached at middlluc@umich.edu

[1] Margo L. Stiles ET AL., Bait and Switch: How Seafood Fraud Hurts our Oceans, our Wallets and our Health 3 (2011).

[2] See, e.g., Laura Peterson, 500 chefs and restaurant owners urge traceability standards, Greenwire (OCT. 25, 2012), http://libproxy.law.umich.edu:2217/Greenwire/2012/10/25/9

[3] See Safety And Fraud Enforcement for Seafood Act, H.R. 6200, 112th Cong. (2012).

[4] See Id. at § 3(b).

[5] Id. at § 3(b)(1).

[6] See, e.g., Stiles ET AL., supra note 1, at 30.

[7] Id. at 31.

[8] Combating Seafood Fraud: Regulators and Industry Unite, htt://www.fishwatch.gov/buying_seafood/combating_seafood_fraud.htm (Last visited November 9, 2012).

[9] Stiles ET AL., supra note 1, at 31.

[10] Combating Seafood Fraud, supra note 8.

[11] Stiles ET AL., supra note 1, at 31.

[12] See Id.

[13] Elisabeth Rosenthal, Tests Reveal Mislabeling of Fish, N.Y. Times (May 26, 2011), http://www.nytimes.com/2011/05/27/science/earth/27fish.html?_r=0.

[14] Id.