Loyola University of Chicago Law Journal
Alexia Brunet Marks, A New Governance Recipe for Food Safety Regulation, 47 Loy. U. Chi. L.J. 907 (2016), available at https://scholar.law.colorado.edu/faculty-articles/1198.
Although food safety is a significant and increasing global health concern, international economic law does not adequately address today’s global food safety needs. While most countries rely on a collection of formalized legal rules to protect food safety, these rules too often fall short. As fiscal constraints impede raising the number of border inspections, formal international commitments (treaties) frequently limit governmental efforts to raise food safety standards. Private companies, meanwhile, can readily adopt higher standards to meet consumer demands and supply chain needs, thus demonstrating more nimbleness and flexibility in adopting the highest food safety standards available. Can countries learn from private motivations in overseeing supply chains while staying true to their formal commitments?
This Article documents a novel legal concept—the growing use of private standards to ensure food safety—reinforced by recent legislation in the United States and elsewhere. While this “New Governance” strategy allows countries to institutionalize the types of steps already taken by private actors, this model is not perfect and additional regulatory oversight and guidance will be necessary to ensure that a reformed New Governance works in this context. This Article confronts the motivations, tensions, and controversies that arise with implementing a New Governance model for food safety and provides a roadmap for achieving higher food safety goals.
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