U. S. Food and Drug Administration
Center for Food Safety and Applied Nutrition
September 3, 2002


FDA-Issued/Supported Export Certificates for Foods

Background Information
Points to Consider Regarding FDA-Issued Export Certificates for Foods


--- Background Information ---

FDA's long-established role in the U.S. government has been that of a domestic public health agency charged with protection of the health and economic1 interests of American consumers with regard to the safety and labeling of foods, drugs, cosmetics, biologics, radiologic products and medical devices.

The agency's statutory mandates, defined primarily by the Federal Food, Drug, and Cosmetic Act (FFDCA), focus squarely on ensuring that American consumers are protected against unsafe products, and from the adverse health or economic consequences of false or misleading labeling. Therefore, throughout its history, FDA has concentrated on development of science-based regulations governing product safety, quality and labeling and implementing effective enforcement regimens aimed at ensuring that FDA-regulated products that are either produced in, or imported into, the United States comply with these regulations.

With the emergence of a global economy over the last twenty years, the international environment in which the United States -- and FDA -- operate has changed dramatically. U.S. export issues, while sometimes having a compelling public health component, are principally related to means of facilitating export of U.S.-manufactured products. Consequently, FDA has not participated actively in this "export trade" environment. However, foreign governments, including developed countries with established regulatory infrastructures and developing countries without basic regulatory frameworks, are increasingly looking to FDA, as the "national competent authority" for FDA-regulated products, to ensure that products imported into their countries from the United States meet specific requirements. Thus, recently FDA has become increasingly and substantively involved in attesting to the safety and quality of U.S.-produced, FDA-regulated products exported to other countries.

Until recently, FDA has not had an explicit statutory mandate to address export-specific issues pertaining to the safety of FDA-regulated products that are produced in the United States and exported to other countries. To provide FDA with additional authority in this area, Congress enacted the 1996 FDA Export Reform and Enhancement Act and the 1997 FDA Modernization Act, which, among other provisions, provided the agency with additional authorities with regard to some exported FDA-regulated products. For example, the FDA Export Reform and Enhancement Act provides a statutory framework for FDA to charge fees and to issue export certificates for human and animal drugs, medical and radiologic devices and biologics. It provides FDA with the authority to collect a fee of up to $175 for each such export certificate, provided that the certificate is issued within 20 days of request. However, this fee authority for export certificates does not apply to export certificates for foods or animal feeds.

Agencies of the Department of Agriculture (USDA) with responsibilities for food safety and quality and for other food-related issues are currently authorized, in some circumstances, to collect fees associated with issuance of export certificates for designated agricultural products, including foods. The Food Safety and Inspection Service (FSIS) has authority to collect fees and to issue export certificates for foods under its authority -- meat, poultry, processed egg products -- when a foreign government's requirements are different than those covered by U.S. regulations. The Animal and Plant Health Inspection Service (APHIS) charges fees for issuance of food-related export certificates pertaining to plant and animal health issues. The Agricultural Marketing Service (AMS) has fee authority for food export certificates for issues relevant to product quality and to certain food safety attributes. The Grain Inspection, Packers and Stockyard Administration (GIPSA) collects fees for export certificates for various aspects of grain safety and quality.

The National Marine Fisheries Service (NMFS) of the National Oceanic and Atmospheric Administration (NOAA), Department of Commerce is authorized to collect fees to recover both the inspectional and administrative costs associated with its issuance of export certificates for fish and fishery products under its Seafood Inspection Program (SIP). FDA, as the principal federal agency in the United States responsible for seafood safety, is also requested by the U.S. seafood industry and foreign governments to attest to the safety of U.S. harvested/produced seafood and to issue export certificates. FDA issues such certificates on a discretionary basis, but does not recover any of the administrative costs associated with this activity.

While FDA is looked to by the U.S. food industry and foreign governments as the competent authority to attest to the safety of U.S.-produced foods, it has neither the legislative mandate to issue export certificates for foods, nor general authority to collect fees for export certificates that the agency may choose to issue on a discretionary basis. Moreover, FDA does not now receive other federal funds that might be transferred to FDA from another agency's fee-supported certificate program in order to provide FDA staff support for inspectional or administrative activities needed to maintain lists of "export eligible firms". Such lists are based primarily on FDA's domestic enforcement and inspectional findings. In some cases, FDA must obtain inspectional information, review the findings and assess the general compliance history of candidate firms before another, fee-supported U.S. agency can issue an export certificate.

Resources within the agency to support FDA's discretionary export-related activities are extremely limited and must be diverted from resources (appropriated funds) that are intended to support FDA's public health activities and programs. Consequently, FDA is now finding it increasingly difficult to strike an appropriate balance between its paramount mission of protecting the health of American consumers through programs aimed at ensuring the safety of domestic and imported products, and its emerging, but unmandated role of facilitating the international trade of U.S.-produced foods by attesting to the safety of food products exported from the United States.

In its December 1999 Affirmative Agenda for International Activities, FDA's Center for Food Safety and Applied Nutrition (CFSAN) stated its intent to try to find effective and resource-efficient approaches to issuing export certificates for foods. The Affirmative Agenda stated that FDA would seek means to:

"Attest to the Safety or Other Attributes of Foods and Cosmetics Produced in the United States

Because of the increasing demand for food-related export certificates, FDA accomplishment of these objectives depends on the agency's ability to acquire the resources necessary to offset at least a portion of the costs associated with issuance of export certificates for foods.

The President's budget request for FDA for Fiscal Year 2002 included a proposal for $5.3 million in user fees that would be used to support FDA activities associated with issuance of export certificates. The proposed user fees were not authorized for FDA for FY 2002 and they were not included as part of the President's FY 2003 budget proposal for the agency.

A draft bill that would amend the FFDCA to provide FDA with authority to collect user fees for food export certificates was also prepared by the Administration and sent to Congress late in 2001. The "FDA Export and Import Fee Act of 2001" also contained provisions for user fees to support part or all of the costs of certain import-related activities of FDA. The proposed bill was not introduced last year and so far has not been introduced in the current session of Congress.

The purpose of the President's FY 2002 budget proposal for FDA user fees for food-related export certificates and of the proposed authorizing legislation was to provide the agency with a statutory framework to issue food export certificates that support the trade and economic interests of U.S manufacturers in a manner that does not detract substantially from appropriated resources devoted to protecting public health. The beneficiaries of FDA-issued and FDA-supported export certificates are U.S. food manufacturers and exporters.

The following "Points to Consider" provide a summary of the above background and some additional information on FDA's activities related to food export certificates. In addition, information on other types of export certificates issued by FDA may be found at: http://www.fda.gov/cber/guidelines.htm


Points to Consider Regarding FDA-Issued Export Certificates for Foods

  1. FDA is the "competent regulatory authority" for most U.S. foods.

  2. FDA currently has no authority to collect fees for food-related export certificates.

  3. Other countries are increasing their demands on FDA for food export certificates.

  4. FDA works unreimbursed with other agencies/organizations in order to attest to the safety of U.S. foods.

  5. The President's 2002 budget request included $5.3 million in user fees for FDA to partially offset the costs of FDA-issued/supported export certificates for foods.

  6. Proposed legislation would give FDA authority to collect fees for food export certificates.

  7. The U.S. food industry would benefit from an enhanced FDA system for issuing export certificates for foods.

  8. FDA intends only to issue export certificates for foods that attest to compliance with U.S. regulations


Note:

1 FDA's primary role is public health protection. However, the agency has authority to address certain "economic" issues pertaining to FDA-regulated products, including foods. For example, FDA can establish food quality standards, or standards of identity for some types of foods. These standards are intended to ensure that consumers and producers can be assured that foods, principally processed/manufactured foods, meet basic standards of quality and identity. In this way, consumers are not misled into purchase of lesser quality products that may be represented as an "authentic" food and producers are generally assured that substandard quality products do not undermine public confidence in the "standardized" authentic product. Generally, however, because of limited resources, enforcement of these "economic" issues is not currently a high priority for FDA.


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