A November 2014 Government Accountability Office (GAO) report on federal agency oversight of consumer product safety cited the dual jurisdiction by the Food and Drug Administration (FDA) and the Consumer Product Safety Commission (CPSC) over some food-contact articles and equipment as an area for improvement. The report, Consumer Product Safety Oversight: Opportunities Exist to Strengthen Coordination and Increase Efficiencies and Effectiveness, was based on a GAO audit conducted from July 2013 to November 2014. The audit found that some safety-related aspects of packaging are subject to FDA authority, some to CPSC authority, and some are subject to dual jurisdiction.
By way of background, in 1976, FDA and CPSC signed a memorandum of understanding (MOU) that delineated their respective areas of jurisdiction with regard to food packaging and other food-contact articles and equipment. It gave FDA authority over substances on the surfaces of products that come into contact with food—such as utensils, food containers, and drinking glasses—that can potentially migrate into food. CPSC has regulatory authority over the same articles for hazards unrelated to surface migration into the food. For example, food packaging or containers that present mechanical or physical risks of injury not related to food contamination or spoilage—such as sharp edges or flammability—are subject to CPSC's jurisdiction. In addition, the MOU states that articles used in the preparation or holding of food that have the potential to cause spoilage without migrating or becoming a component of food also are regulated by CPSC.
GAO found that new requirements concerning children's products under the Consumer Product Safety Improvement Act of 2008 (CPSIA) created areas of dual jurisdiction. For example, CPSIA includes restrictions on the use of certain phthalates in children's toys and child care articles. However, children's toys and child care articles in some cases may also be considered food-contact articles subject to FDA jurisdiction. A specific example provided by GAO in the report is a spoon intended for use in the feeding of infants. The substances making up the bowl and tip portions of the spoon intended to contact food and that could potentially migrate into the food would be regulated by FDA. The same components of the spoon could also be subject to CPSC's limits on the use of certain phthalates in children's products. While FDA generally has jurisdiction over the outer portion of an article that contacts food or beverages, the Commission has stated that since CPSIA does not distinguish between exposure pathways, a food-contact article that meets the definition of a child care article must meet the phthalates requirements of CPSIA.
A reevaluation of jurisdictional delineation between CPSC and FDA is underway. During the audit, FDA told GAO that the Agency began working with CPSC in 2012 to update the MOU. An updated version has not yet been published, however.
In addition to food-contact articles, GAO found that oversight responsibilities for the safety of consumer products, in general, are fragmented across agencies. The Office identified eight agencies that have direct oversight responsibilities for consumer product safety, and at least 12 other agencies that serve a supporting role. GAO recommends that Congress establish a formal collaboration mechanism to address comprehensive oversight and inefficiencies related to fragmentation and overlap between agencies. GAO suggests that the types of formal collaboration mechanisms might include a MOU, and the establishment of a task force or interagency working group.