Food and Drug Administration Regulation of Imported Foods and Compliance With International Trade Obligations

Abstract

The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (“Bioterrorism Actâ€) granted the Food and Drug Administration (“FDAâ€) new authority to improve response to both intentional and unintentional pathogenic contamination of food. The Bioterrorism Act imposes mandatory registration of food facilities, mandatory prior notice of all imported foods, and mandatory record-keeping by food facilities. Further, the Bioterrorism Act grants FDA authority to administratively detain potentially dangerous food. Although Congress and FDA might prefer stricter food safety policies, their power to regulate imported foods is constrained by international trade agreements. In particular, the World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures and similar provisions in NAFTA apply to food safety measures. The Bioterrorism Act is subject to criticism that its requirements fail to comply with these international trade obligations.