JURIST Guest Columnist Volha Samasiuk is a LL.M. Candidate from the University of Arkansas School of Law, and she was formerly a legal consultant for the Belarus Food Safety Improvement Project. She analyzes how the FDA currently protects the public from radiation contaminated food in the wake of the Fukushima Daiichi nuclear disaster, and suggests that greater lengths should be taken to make consumers aware of food irradiation…

The word “radiation” is typically associated with danger to people’s health and lives. Nuclear accidents and the release of radiation conjure up truly frightening images. Radiation certainly threatens the health of populations in directly impacted, contaminated areas, but it can also have a permeating and widespread impact through the distribution of contaminated food supplies. Moreover, due to international trade, contaminated food supplies can be a global concern. At the same time, this frightening word takes on a positive meaning with regard to the concept of “irradiation,” the process by which an object is exposed to radiation. In particular, under the Food and Drug Administration’s (FDA) definition, “food irradiation”—the application of ionizing radiation to food—is a technology that improves the safety and extends the shelf life of foods by reducing or eliminating microorganisms and insects. With such seemingly conflicting conceptions of radiation, we must ask ourselves how is the FDA regulating radiation levels in food and how is it making the public aware of irradiated foods?

On March 11, 2011, the Fukushima Daiichi nuclear disaster occurred. As a result of an earthquake, followed by a tsunami, three nuclear reactors had a complete meltdown and three others malfunctioned. Japan’s Nuclear and Industrial Safety Agency stated that the nuclear plant released about 770,000 tera becquerels of radioactive materials, including iodine-131 and cesium-137, which amounts to about 14 percent of the radiation that was emitted in the Chernobyl disaster of 1986. The Fukushima disaster is considered to be the worst nuclear disaster since Chernobyl. It merited a level seven warning, the most serious degree of warning according to the International Nuclear Event Scale. This scale ranges from level zero, a deviation of no safety significance, to level seven, a major accident. Furthermore, the accident in Japan prompted other countries around the world to take new policy measures—as was discussed by Special Guest Columnist Tamar Cerafici—to protect their own nuclear industries from possible hazards and to reassess their nuclear power plants. In addition, radiation contamination of food has become an important health concern throughout the world, and it is in this context that we must ask whether or not we are protected from damaging levels of radiation in food imported from Japan?

Food can be contaminated directly when exposed to radiation, for example, radioactive materials can deposit on the surface of fruits and vegetables. Moreover, when radioactive materials are transferred through soil and water into plants or animals, radioactivity can build up within our food. It is worth noting that radionuclides cannot contaminate packaged food, meaning that as long as the food is sealed it is protected from radioactivity. The effect of ingesting contaminated food depends on the type and amount of radionuclides in the food product. Iodine-131 and cesium-137 are considered to be the main contaminants with half-lives of eight days and 30 years respectively.

The World Health Organization states that radioactive iodine accumulates in the thyroid gland and increases the risk of thyroid cancer, particularly in children. Radioactive cesium can also lead to an increased risk of cancer. Foods imported from Japan to the US make up less than four percent of all food imported to the US. After the Fukushima Daiichi nuclear disaster, the FDA issued Import Alert 99-33 regarding the importation of milk products, fresh vegetables and fruits produced or manufactured from the four Japanese prefectures of Fukushima, Ibaraki, Tochigi and Gunma. The FDA issued the alert to complement the measures taken by the Japanese government, and to strengthen the global food safety net regarding certain products.

The FDA currently works closely with other US agencies, including US Customs and Border Protection, to help identify shipments that may be dangerous. If the radiation level in any food reaches the FDA intervention level, then the FDA has the authority to remove the food from distribution. Since the nuclear accident, the FDA has used a special process for handling food imports from Japan. Employing a tracking system, the FDA tags all shipments of FDA-regulated products from Japan. Shippers submit a prior notice to the FDA before the arrival of any shipments of FDA-regulated food and feed products. If even a credible threat is identified, the FDA has the right to stop these products upon arrival at the US border, or before they enter into US commerce. At the port of entry, the US Customs and Border Protection agency routinely uses radiation detection equipment to screen food imports from Japan. Moreover, the FDA’s import staff reviews each food shipment from Japan and determines whether it should be examined and sampled, or released.

Despite the precautions taken with respect to radiation contaminated foods coming from Japan, the FDA has determined in Compliance Policy Guideline Sec. 560.750 that the use of radiation in food in small doses is safe. The FDA claims that food irradiation serves such purposes as prevention of foodborne illnesses, control of insects, delay of sprouting and ripening, preservation and sterilization of foods. Under this process, approved foods are exposed to radiant energy, including gamma rays, electron beams and x-rays. Cobalt-60 and cesium-137 are allowed to be used for irradiation as gamma sources. The FDA sets radiation dose limits for specific food types. However, consumers’ concern about the impact of food irradiation to people’s health is growing. There is the position that food irradiation destroys much of the vitamins and minerals in food and that it produces a number of toxic byproducts, such as formaldehyde, benzene and formic acid. Some also argue that the FDA acceptable dose limits are too dangerous.

Not uncontroversially, the FDA has approved the use of irradiation for a wide variety of foods sold in the US, including beef and pork, poultry, molluscan shellfish, shell eggs, fresh fruits, vegetables, spices, seasonings and seeds for sprouting. Under FDA regulations, if an entire food product is irradiated, the international symbol for irradiation, the radura, must be placed on the product’s package, and the package must be marked with the phrase “treated with radiation” or “treated by irradiation.” However, when irradiated food is used as only part of or as an ingredient in a product, that product’s package is not required to display the radura image, and while the irradiated food must be listed in the ingredients, the fact that the product contains potentially dangerous toxins as a result of irradiation is not required to be displayed on the packaging, likely making their existence unknown to consumers. Moreover, food not sold in stores is not required to be marked, meaning that consumers who dine at a restaurant will not know whether their food has been irradiated because restaurants are not obliged to reveal that information.

In light of the FDA’s recent steps toward protecting against and regulating radiation levels in food in the aftermath of the Fukushima Daiichi nuclear disaster, we must revisit the more general and pervasive issue of foods held to be acceptably treated with radiation through the approved process of irradiation. Regulations that more fully help to make consumers aware of irradiated foods are necessary, as consumers, under current regulations, are likely to ingest these potentially harmful substances without their knowledge, when dining in a restaurant or consuming foods that contain irradiated ingredients.

Volha Samasiuk holds a Diploma and a Doctor of Philosophy in Law from the Belarusian State University. She was an Associate Professor of law at the Belarusian State University, a Visiting Scholar at the University of Washington School of Law and a Curriculum Research Fellow at the Central European University in Budapest, Hungary.

Suggested citation: Volha Samasiuk, Revisiting the Regulation of Radiation in Food After Fukushima, JURIST – Dateline, Mar. 15, 2012, http://jurist.org/dateline/2012/03/volha-samasiuk-fda-radiation.php.