"The impact of facility photographs or video isn't limited to federal agents. It could enable private citizens, such as animal rights advocates, to easily capture video and photos without attracting attention..."

Google glasses could impact the food industry in two ways. It could feed a growing consumer demand to know more about its food and it could better enable federal agencies to gather evidence during an inspection.

FDA and USDA inspections instill a good deal of terror in my clients. The searches are often unannounced, involve a full scale search of a facility, including computer files, and typically span four or five days. If there is one issue my clients fear most during an inspection its photographs. The FDA has long asserted that it has authority, under Section 704 of the Food, Drug, and Cosmetic Act to take pictures during on-site inspections of facilities.  When challenged on the issue, the FDA cites two decisions for legal support (see Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (holding that Environmental Protection Agency ( had statutory authority to use aerial photography during a site inspection of a chemical company’s industrial complex) and United States v. Acri Wholesale Grocery Co., 409 F. Supp. 529 (S.D. Iowa, 1976) (holding that photographing warehouse conditions by FDA agents was not unreasonable)).  Neither case, however, directly addresses the FDA's authority to take photographs during an in-plant inspection.

Will Google Glasses make facility photographs easier or more routine for federal agents? It may, which  would mean a direct challenge to FDA or USDA authority to take photos during an inspection. It will be interesting to watch how courts address the issue.

The impact of facility photographs or video isn't limited to federal agents. It could enable private citizens, such as animal rights advocates, to easily capture video and photos without attracting attention. Consumers want to know more about their food - recall this year's pink slime scandal or the Starbucks' red beetle-dye snafu. This may raise the question - where does the consumer's right to know end? Ultimately, the impact from private citizens may be muted. After all, Upton Sinclair was able to rouse public opinion to the point that Congress passed the Food and Drug Act and Meat Inspection Act in 1906. If he can do all that without Google Glasses, then perhaps its merely a changing of the means and not the ends.

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[Marc C. Sanchez represents FDA-regulated companies in the food, dietary supplement, beverage, cosmetic, medical device and drug industries. He also teaches as part-time adjunct professor at Northeastern University on regulatory topics including US and international food law and regulation.

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