Analysis
US law to investigate foodborne illness outbreaks has been delayed for 15 years
Jessica Glenza
Law was set to go into effect in January, months before cyclosporiasis outbreak, but now is set for 2028
Congress passed a law to help federal agencies investigate outbreaks of foodborne illness – a regulation experts said could have stopped the US’s largest cyclosporiasis outbreak much sooner
The only problem? The rule has been delayed – for 15 years, including most recently amid lobbying in 2025
It was set to go into effect in January 2026, months before the single-celled parasite sickened more than 24,000 people and killed two in the midwest
Now, it won’t go into effect until 2028
“Congress recognized this issue in 2010 and asked [the Food and Drug Administration, or FDA] to develop solutions,” said Sara Sorscher, an attorney who specializes in food safety at the Center for Science in the Public Interest, a consumer advocacy group. “We are now 16 years in, and we still don’t have enforcement of this rule that’s meant to deal with exactly this type of situation.”
Often called the “traceability rule”, the regulation comes from the Food Safety and Modernization Act (FSMA) of 2011, passed during the Obama administration. The regulation requires enhanced record-keeping for high-risk foods – namely, those which have a history of making people sick, such as soft cheese, leafy greens, eggs and peanut butter – “for persons who manufacture, process, pack, or hold foods”
The promise of the traceability rule is to allow the FDA to more quickly and accurately pinpoint where tainted food came from, all the way down to the farm. However, the rule has raised the hackles of some in the food supply chain, and retailers and food manufacturers have been particularly vocal about their concerns, lobbying reports show
“It’s pretty crazy,” said Jennifer McIntire, founder of the food safety consulting firm Food Strategy, about the lengthy implementation of the rule
Earlier this month, a group of 11 consumer, public health and labor advocates called on Congress to speed up implementation of the rule in a letter to lawmakers – arguing this summer’s cyclospora outbreak caused a “crisis in consumer confidence”
“It’s probably getting close to 30,000 people – 95% of all the illnesses occur in the 15 states that have Taco Bell and Taylor Farms,” said Bill Marler, a leading food safety attorney, about the cyclosporiasis outbreak. He is representing more than 400 people sickened in the outbreak, and has publicly said he supports the groups’ letter
The heart of uncovering the culprit in a foodborne illness outbreak is the “traceback”. Local health departments are the first line of defense – they find out who ate what and where – a restaurant, a bagged salad, a carton of eggs
Then federal agencies, including the FDA, find out where potentially contaminated food came from by following the supply chain back from a restaurant or grocer to distributors, packing operations and farms
“For example, let’s do packaged salad – lettuce and greens,” said David Lennarz, who co-founded Registrar Corp, a supply chain company that helps businesses comply with federal food safety regulations
“Some of the products you can buy are multiple types of greens – you could have radicchio, spinach, you could have lettuce. Those could be coming from completely different
The current tracking system in the US derives from the Bioterrorism Act of 2003, according to Jennifer McEntire, founder of the food safety consulting firm Food Strategy. In the years following September 11, 2001, and amid the anthrax threats sent to senior US officials in its aftermath, “it was recognized that food was a critical infrastructure, and that FDA had no idea – no authority – to know what food facilities even existed in the United States. And that was a loophole that was closed through the Bioterrorism Act,” said McEntire.
That left the US with its current system, often called, “one up, one back” – meaning a restaurant or retailer needs to document where they bought something, and a distributor or manufacturer needs to know where they sold something. Still, this system left food traceback incredibly difficult
“I think FDA does a pretty darn good job, but tracebacks are very, very challenging,” said Lennarz
Determining where individual greens came from is hard because, per a group representing US farmers, data related to where the crop originated is often lost at the point where cases from farms are combined into pallets, which are then loaded on to trucks
“Since a field of leafy greens can go to multiple restaurants or multiple homes, we want to be able to find any lettuce that is offending and gather it and pull it back as quickly as possible,” said De Ann Davis, vice-president of science for the Western Growers Association, which represents farmers and supports the traceability rule
The stakes are high for farmers – the price of lettuce dropped more than 16% in July, according to government inflation data, as consumers dropped lettuces. Davis said farmers have collected data on where cases of their produce goes for more than a decade as part of a voluntary initiative called the Produce Traceability Initiative
“If post-when-we-ship it is not traced well, or tracked well, there is very little our grower can do about it,” said Davis. The government’s traceability rule would require manufacturers and sellers to retain that information, so that it can be provided to the FDA in the case of contamination
Even as food safety advocates and growers promote traceability, some of the most intense lobbying has come from retailers and food industry groups. The Food Industry Association (FMI) described traceability as “the most complex regulation the food industry has ever faced” in a recent statement, and retailers made their “concerns” about the regulation known to lawmakers and regulators, lobbying reports show
In 2024, the Reagan-Udall Foundation for the FDA, a private nonprofit created by Congress during the Bush-era, held a roundtable with representatives of the food industry, from behemoths to influential restaurant groups. Among the attendees were Chipotle, Kellogg Company, the midwestern convenience store chain Kwik Trip, the National Restaurant Association, the National Grocers Association and McDonald’s
In a summary of the event published by Reagan-Udall, industry representatives argued traceability would “potentially require significant increases in labor, equipment, and space, with significant associated costs”, according to a 2024 industry roundtable with an FDA-affiliated nonprofit
From 2024 to 2025, lobbyists for FMI, the southern giant Publix Super Markets, the National Retail Federation and the International Food Service Distributors Association all lobbied on the traceability rule
The National Retail Federation (NRF), whose board of directors includes food heavyweights such as Albertson’s, Walmart and Target said in lobbying disclosure reports that it was “requesting inclusion of language in FY24 Agriculture Appropriations bill to require FDA to work collaboratively with industry to address concerns with FMSA 204 traceability rule”, and that it was “seeking support” for a bill that would relax food traceability requirements, introduced by a House Republican from Florida. NRF also expressed “concerns with FMSA 204 traceability rule” to the House, Senate, FDA and CDC, according to lobbying reports.
After all this lobbying, the industry got part of what it wanted – another delay. In March 2025, the FDA announced a 30-month delay in enforcement of the traceability rule. In November 2025, Congress ended a historic 43-day government shutdown with a budget bill
Buried in the massive appropriations act was an important provision for food safety: Congress prohibited enforcement of the traceability rule until July 2028 – the same provision that consumer groups asked lawmakers to rescind in a letter this month
In a statement, FMI said: “The food industry shares FDA’s commitment to strengthening food traceability, protecting public health and assisting with foodborne illness investigations to quickly identify and remove potentially contaminated products from commerce. FMI and our member companies have put in a tremendous amount of time, effort and reDA Food Traceability Rule.”
FMI continued: “It is extraordinarily complex and requires unprecedented coordination among growers, manufacturers, distributors, wholesalers, retailers and foodservice operators. Having adequate time is essential for addressing operational realities and developing practical, workable solutions across the entire food supply chain without increasing costs or disrupting the flow of goods. We look forward to continuing to work with FDA to ensure that the rule reflects the goals of the 2011 Food Safety Modernization Act and that food companies of all sizes are able to comply.”
The Guardian also contacted NRF and Publix Super Markets for comment, but did not receive a response
But for some advocates like Marler, whose law firm handles cases of victims who may be severely injured or even killed by food contamination, the delays are nothing short of inconceivable
The traceability rule “allows product to get off the market faster so less people get sick – all of those things are good for industry, whose product is being besmirched by one entity”, said Marler
“These grown white men who run these organizations are acting like 2-year-olds… They just don’t want to be told what to do.”
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