As those who have been following the progress of the Food Safety Modernization Act (FSMA) are aware, implementation of the legislation has been anything but speedy.

The FSMA, which was signed into law back in 2011, authorizes the Food and Drug Administration (FDA) to implement regulations geared toward food safety and has no true impact until these underlying regulations become effective. To put it mildly, the FDA has been slow to release these regulations. So slow, in fact, that the FDA has been subjected to litigation by food safety advocacy groups as a result of its lack of responsiveness. 

Given the FDA’s apparent lack of urgency to this point, it comes as no surprise that many carriers, shippers and 3PLs are inclined to take their cue from the federal agency and continue to defer preparing for the regulations, regardless of the fact that two of the five implementing regulations are now published in final form,1 and the Sanitary Transportation of Food Rule is expected in just a few short months.2 After all, given the history of the FSMA, there is little reason suspect that the FDA’s enforcement of the regulations will be swift.

In preparing for the regulations, however, all segments of the transportation industry should keep in mind that the FSMA will not only be enforced by the FDA, but that it will also be enforced through litigation as well.

Strictly by way of example, the Centers for Disease Control and Prevention estimates that 128,000 people are hospitalized and that 3,000 people die from foodborne illness each year.3 Realistically, any carrier, shipper, 3PL, processor or retailer involved in the sale and transportation of suspect  food is likely to find itself named as a defendant in any litigation stemming from such an instance, and would thus need to prove that it that it exercised reasonable care over the food when it was in its custody. Prompt compliance with the FSMA is almost certain to be a key factor in making such a showing. Moreover, recognizing the risk attendant to the transportation of food under the FSMA, it is a distinct possibility that larger retailers will require documented FSMA compliance from their supply chain before the FDA itself ever gets around to enforcing the regulations.

Furthermore, given the strict temperature control requirements found in the draft Sanitation and Transportation Food Rule,4 freight claims for “adulterated” food may begin immediately upon the rule’s effective date. In this instance, the FDA’s enforcement will be immaterial to the ensuing freight claim litigation.

In light of the imminent nature of the FSMA regulations, all segments of the food transportation industry should begin discussing plans for compliance with their respective counterparts in the supply chain and establish plans for compliance with the final effective rules. Such plans would vary depending on the precise nature of the food, but should include, at a minimum, plans for temperature control compliance, sanitation compliance, record-keeping procedures and driver training procedures.