Speed kills – especially when government moves too quickly to regulate food safety.

With the release of a report on the costs of illnesses caused by unsafe produce, the pressure is intense on Congress to pass far reaching food safety legislation and on FDA to produce regulation. The problem is that, like most modern food safety problems, there is no quick and easy fix and regulation will only fix into law requirements that might address a few of the problems but are likely to miss many of the problems. Here’s why and how better to meet safer food goals.

The ways in which pathogens get into produce are complex and changing. Problems on farms in dry California are entirely different than those in wet Florida. What’s more, the sources of contamination on farms can change, with birds or rodents perhaps causing problems one day and contaminated ponds used for irrigation the next. There is also an extremely complex set of distribution, warehousing, and retail sectors to contend with. Each of these sectors faces its own unique challenges. Then, there are the unsophisticated food handlers, that is, consumers, at the end of the end of chain who are normally connected to the bulk of problems. Finally, there are the pathogens themselves, e.g., e.coli and salmonella, which are constantly mutating into different strains.

Regulation at any one point in time can only address the problem at that one point in time. Furthermore, despite the complex nature of each industry, agencies must write rules that apply equally to all no matter what their particular problem.

Producers and FDA understandably would like to get out from under the spotlight produced by media, Congress and food safety advocates. Producers and FDA have been studying produce risks for years and have managed to make a good deal of progress. These research efforts have facilitated a market-based approach to food safety (as opposed to heavy-handed regulation). For example, DNA fingerprinting of pathogens has led to the identification of more outbreaks and, in turn, the source of these outbreaks. Coupled with industry efforts to track food through the supply chain using new technology such as RFID (electronic tags), the identification of industry bad actors is becoming easier all the time.

If this activity is promoted and continues, the tremendous power of market forces and civil litigation will increasingly be turned against those that contribute to food safety problems. FDA can play a key role in this process by enhancing the surveillance system and conducting research to help the industry find solutions.

Regulation takes away all that opportunity. If the focus remains on regulation, it means that FDA must begin a several year process to first produce a proposal and eventually a final rule. That rule will enshrine in law today’s knowledge that must then be enforced on all. The dynamic nature of the learning about problems, trying solutions where they fit, and rejecting those that don’t work, stops cold. In fact, resources that might have been devoted to solving problems must now go into writing and responding to regulations, and enforcing and complying with fixed requirements. Stopping the dynamic process may very well end up making the situation worse.

Creating regulations will take the heat off politicians, however. If FDA puts out a regulation on produce, Congress can move on to other pressing issues, the media will move on, and consumer groups will applaud FDA for moving swiftly – at least until the next outbreak.

And just as they haven’t changed very much for a number of years, the number of cases and deaths from food borne illness are not likely to change much after these efforts. The numbers that have recently been released on the cost of food borne illness do not reveal anything not already known. They ,may primarily be a reflection of how the Centers for Disease Control models what they call “attribution.” That is, even where there is weak evidence, CDC creates models to attribute cases of food borne disease (also modeled) to specific foods based on their formulas.

There is a great deal of uncertainty in those numbers, but that is really not the issue. The issue is what can and should be done about the problem. Before FDA is forced into regulation, and before Congress passes laws that require FDA to use the same static approach to solving problems (regulation and inspection) that it has used for over 100 years, we should slow down. That way, the real progress that FDA and industry have the potential to make isn’t stopped in its tracks.

Richard Williams is the managing director of the Regulatory Studies Program at the Mercatus Center at George Mason University and was director for social sciences at the Center for Food Safety and Applied Nutrition in the Food and Drug Administration for 27 years.

David Bieler is a Masters fellow in the Regulatory Studies Program.