Yesterday the U.S. Senate passed the FDA Food Safety Modernization Act (FSMA), S. 510. It passed with strong bipartisan support. The final vote was 73 to 25. My friend Jason Zuckerman has written a detailed analysis of FSMA’s new whistleblower protection. Those who need the details about the scope and legal requirements for FSMA whistleblower claims should read Jason’s analysis.
The FSMA follows in a series of whistleblower protections created when Congress confronts a serious problem. Six federal environmental laws created whistleblower protections with the rise of the environmental movement. Other laws followed to protect truck drivers, nuclear power workers, airline pilots, corporate accountants, pipeline workers, and those who raise concerns about the safety of consumer products. Thus, we have a "patchwork" of protections as each new law covers another slice of America’s workers. The advantage of patchwork legislation is that whistleblowers benefit from each wave of public concern over some danger. If the danger actually kills people, that is all the more motive for legislators to show that they are doing something significant. Notice, though, that while tainted food kills about 5,000 Americans a year, so do workplace safety and health dangers. Yet the Senate has taken no action to modernize Section 11(c) of the Occupational Safety and Health Act (OSH Act). Medications may kill as many as 100,000 Americans every year (here’s another cite), yet the Senate has not extended whistleblower coverage to workers who raise concerns about violations of the FDA’s pharmaceutical regulations. The Chamber of Commerce and Big Pharma remain too formidable for legislators to challenge with the prospect of meaningful whistleblower protection. This is the disadvantage of patchwork legislation. Perhaps someday legislators will join together in agreement that all whistleblowers, in both the public and private sectors, should have gold-standard whistleblower protections whenever they raise any concerns about illegality, fraud, or dangers to the public safety.
