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House Expected to Approve Food Safety Bill Today

The House is expected to approve major food safety legislation today. Though many on Capitol Hill pronounced the bill dead last week, the measure bounced back to life over the weekend when the Senate unanimously–and quite unexpectedly– advanced the beleaguered bill late Sunday night.

The FDA Food Safety Modernization Act, which would, for the first time in several decades, update the U.S. Food and Drug Administration’s oversight over the food supply, has been in legislative limbo for over a year.  As dean of the House, Rep. John Dingell, D-MI, who has worked on the food safety law for many years, put it:  “This legislation has seen more procedural fits and starts than any other.”

The legislation survived a near-fatal constitutional snafu, filibuster threats, fierce debate over controversial amendments, and managed to gain ground amidst a jam-packed legislative agenda in one of the most productive Congresses in recent history.

Consumer advocates, industry groups, and public health experts–who have all followed the ups and downs of the bill with bated breath–responded enthusiastically as the bill sailed through the Senate, again. But, as NPR’s April Fulton noted on Sunday: “No one’s exactly popping champagne corks yet. There’s always the potential for another oops.”

“There shouldn’t be any obstacles but this is one bill where it is not over until it is over,” said Jean Halloran, food safety director at Consumers Union, which publishes Consumer Reports, in an email response to Food Safety News.  “However, we are optimistic.”

Sandra Eskin, director of the food safety campaign at the Pew Charitable Trusts, echoed the same cautious optimism in an email: “We hope that the bill will pass the House sometime [Tuesday.] We understand from House Leadership that they are doing everything they can to speed this vote through.”

The bill is not expected to have trouble clearing the House.  A stronger version of the legislation cleared the lower chamber in July 2009, with a bipartisan 283-142 vote.  Earlier this month, the House approved an identical version, which was attached to a large all-encompassing continuing resolution to keep the government funded through September, 212-206, with 35 Democrats joining Republicans to vote against it.  The bill must be re-approved by the House because it’s no longer riding the spending bill–the CR died in the Senate.

It is not clear how leadership in the Senate came to a deal to advance the food safety legislation as a stand-alone bill.  For months, leadership had to circumvent Sen. Tom Coburn’s, R-OK, vehement opposition to the measure in order to advance the bill.  Coburn threatened to filibuster the bill over the cost–approximately $1.4 billion over five years–though the Congressional Budget Office says the provision is deficit-neutral.

Less than 48 hours before the bill passed the Senate unanimously, Coburn’s office told Food Safety News that the senator would oppose the “so-called food safety bill” if it were attached to a continuing resolution.  After the Senate cleared the bill via unanimous consent Sunday, Sen. Coburn’s office did not return a request for comment.

Slate’s David Weigel reported Sunday that he talked to several staff members of senators who had voted against the bill the last time around–before the constitutional error was realized.

“Nobody knew why their bosses had let it sail through,” said Weigel. “The best theory I’ve heard is that key Republicans, having seen the bill pass with supermajority support (73-25), and having become satisfied that there were no back-door nanny provisions in the bill, decided that it wasn’t worth keeping the Senate in session past Christmas to debate it.  It’s a Christmas miracle, if the key characteristics of Christmas are self-interest and fatigue.”

President Obama is expected to sign the bill before Christmas.

© Food Safety News
  • http://rooftopshout.org Mike

    This is not a bill about food safety. It is about food control and profitability in the interests of large agriculture corporations. I want to know where my food comes from and I would like to be able to grow it myself and feed my local community without the USDA taxing me for it. Farming is a job that embodies what being American means. It is about independence and self sufficiency.
    Why is our government placing legislative controls on feeding our community through farms?
    I know many young people, and I am one of them, who are asking this question.

  • Dorian

    Unanimous consent???? Are you kidding me. There was NO vote. It was passed at 11:30PM on a Sunday. These are crooks who want this bill passed

  • http://www.marlerblog.com bill marler

    Thanks to Republican and Democratic Staff for this great Summary of the House and Senate version of the Bill:
    Noteworthy
    · S. 510 is intended to respond to several food safety outbreaks in recent years by strengthening the authority of the Food and Drug Administration (FDA) and redoubling its efforts to prevent and respond to food safety concerns.
    · The legislation expands current registration and inspection authority for FDA, and re-focuses FDA’s inspection regime based on risk assessments, such that high-risk facilities will be inspected more frequently. The bill also requires food processors to conduct a hazard analysis of their facilities and implement a plan to minimize those hazards.
    · The bill requires FDA to recognize bodies that accredit food safety laboratories domestically and third-party auditors overseas. The bill enhances partnerships with state and local officials regarding food safety outbreaks, and establishes a framework to allow FDA to inspect foreign facilities.
    · The bill does NOT change the existing jurisdictional boundaries between FDA and the Department of Agriculture, and includes protections for farms and small businesses.
    · The bill gives the FDA the power to order mandatory food recalls, in the event that a food company cannot or does not comply with a request to recall its products voluntarily.
    Title I – Prevention
    Records Inspection: Expands and clarifies FDA’s records inspection authority, such that FDA can inspect records regarding an article of food “and any other article of food that [FDA] reasonably believes is likely to be affected in a similar manner, will cause serious adverse health consequences or death to humans or animals.”
    Registration: Requires facilities to renew registration with the FDA every two years, and to agree to potential FDA inspections as a condition of such registration. Gives the FDA Commissioner the power to suspend facilities’ registration in the event FDA determines the facility “has a reasonable probability of causing serious adverse health consequences or death.” A suspended facility shall not be able to “introduce food into interstate or intrastate commerce in the United States. A hearing would occur within two business days on any suspension. If the suspension is found warranted, the facility must submit a corrective action plan before its suspension could be lifted. The bill also states that the commissioner cannot delegate to other officials within FDA the authority to impose or revoke a suspension.
    Small Entity Compliance Guides: Requires FDA to develop plain language small entity compliance guides within 180 days of the issuance of regulations with respect to registration, hazard analysis, safe production, and recordkeeping requirements.
    Hazard Analysis: Requires facilities to analyze at least every three years their potential hazards and implement preventive controls at critical points. Further requires facilities to monitor the effectiveness of their preventive controls, take appropriate corrective action, and maintain records for at least two years regarding verification of compliance. The bill gives FDA the authority to waive compliance requirements in certain instances, and allows FDA to exempt facilities “engaged only in specific types of on-farm manufacturing, processing, or holding activities that the Secretary determines to be low risk.” The language also delays implementation for smaller establishments for up to three years.
    Performance Standards: Requires FDA to review evidence on food-borne contaminants and issue guidance documents or regulations as warranted every two years.
    Produce Safety: Establishes a process to set standards for the safe production and harvesting of raw agricultural commodities (i.e. fruits and vegetables). Requires FDA to promulgate regulations regarding the intentional adulteration of food—applying to food “for which there is a high risk of intentional contamination”—within two years, and issue compliance guidance as appropriate. Includes delayed implementation of up to two years for smaller establishments.
    Fees for Non-Compliance: Imposes fees on facilities only in cases where a facility undergoes re-inspection to correct material non-compliance, or does not comply with a recall order and thereby forces FDA to use its own resources to perform recall activities. Importers would be subject to fees for annual re-inspections or for participation in the voluntary qualified importer program established under title III of the bill. Requires FDA appropriations funding to keep pace with inflation in order for fees to be collected. The bill gives FDA the authority to lower fee levels on small businesses through a notice-and-comment process.
    Safety Strategies: Requires FDA, the Department of Agriculture, and the Department of Homeland Security to coordinate to create an agriculture and food defense strategy, focused on preparedness, detection, emergency response, and recovery. Requires reports from FDA on building domestic preventive capacity—including analysis, surveillance, communication, and outreach—and requires FDA to issue regulations on the sanitary transportation of food within 18 months of enactment.
    Food Allergies in Children: Requires FDA to work with the Department of Education to develop voluntary guidelines to manage the risk of food allergy and anaphylaxis in schools and early childhood education programs. Authorizes new grants of up to $50,000 over two years for local education agencies to implement the voluntary guidelines.
    Dietary Ingredients and Supplements: Requires FDA to notify the Drug Enforcement Administration if FDA believes a dietary supplement may not be safe due to the presence of anabolic steroids.
    Refused Entry: Requires FDA to notify the Department of Homeland Security, and by extension the Customs and Border Protection Agency, in all cases where FDA refuses to admit foods into the United States on the grounds that the food is unsafe.
    Title II – Detection and Response
    Targeted Inspections: Requires FDA to prioritize inspection of high-risk facilities, based on a risk profile that includes the type of food being manufactured and processed, facilities’ compliance history, and other criteria. Requires FDA to inspect high-risk facilities once in the five years after enactment, and every three years thereafter; low-risk facilities would be inspected once in the seven years after enactment, and every five years thereafter. Foreign facility inspections would be required to double every year for five years.
    Laboratory Testing: Requires FDA to establish within two years a process to recognize organizations that accredit laboratories testing food products, and to develop and maintain model standards for accrediting bodies to use during the accreditation process. Requires food testing for certain regulatory purposes to be conducted in federal laboratories or those accredited by an approved accrediting body, with results sent directly to FDA. Includes reporting and other provisions designed to support early detection among laboratory facilities.
    Traceback and Recordkeeping: Establishes a series of pilot projects within nine months of enactment on “methods to rapidly and effectively identify recipients of food to prevent or mitigate a foodborne illness outbreak.” Requires FDA to issue within two years a notice of proposed rulemaking regarding recordkeeping requirements for high-risk foods. Permits FDA to request that farm owners “identify immediate potential recipients, other than consumers,” in the event of a foodborne illness outbreak. Delays implementation of regulations for up to two years for smaller establishments.
    Surveillance: Directs FDA to enhance foodborne illness surveillance systems to improve collection, analysis, reporting, and usefulness of data on foodborne illnesses, and establishes a multi-stakeholder working group to provide recommendations. Reauthorizes an existing program of food safety grants through fiscal year 2015.
    Mandatory Recall Authority: Provides FDA the authority to order recall of products if the products are adulterated or misbranded “and the use of or exposure to such article will cause serious adverse health consequences or death.” Requires FDA to provide an opportunity for voluntary recall by the manufacturer or distributor prior to ordering a recall and provides the responsible party the opportunity to obtain a hearing within two days regarding any FDA order for a mandatory recall. Requires federal agencies to establish and maintain a single point of contact regarding recalls, and requires FDA to take appropriate actions to publicize mandatory recalls through press releases, an internet Web site, and other similar means. Also gives FDA authority to order the administrative detention of food products when the agency has “reason to believe” they are adulterated or misbranded. Directs that only the commissioner has the authority to order a mandatory recall, a power that may not be delegated to other FDA employees.
    State and Local Governments: Directs FDA, working with other federal departments, to provide support to state and local governments in response to food safety outbreaks. Requires the Department of Health and Human Services to set standards and administer training programs for state and local food safety officials. Creates a new program of food safety centers of excellence, and amends an existing program of food safety grants to fund food safety inspections and training, with an extended authorization through fiscal year 2015.
    Food Registry: Permits FDA to require the submission of reportable food subject to recall procedures (excepting fruits and vegetables that are raw agricultural commodities). Requires grocery stores with more than 15 locations to post information about reportable foods prominently for 14 days.
    Title III – Food Imports
    Foreign Supplier Verification Program: Requires importers to undertake a risk-based foreign supplier verification program to ensure that imported food meets appropriate federal requirements and is not adulterated or misbranded. Requires FDA to establish regulations for the foreign supplier verification program within one year of enactment. Importers’ records relating to foreign supplier verification would be maintained for at least two years.
    Voluntary Qualified Importer Program: Directs FDA to establish within 18 months a voluntary program of “expedited review and importation” for importers. Eligibility would be determined by FDA using a risk assessment based on such factors as the type of food being imported, the compliance history of the foreign supplier, and the compliance capacity of the country of export.
    Import Certification: Permits FDA to require as a condition of importation a certification “that the article of food complies with some or all applicable requirements” under the Food, Drug, and Cosmetic Act. Requires FDA’s determination of certification requirements to be made based on risk assessments. Requires notices for imported food to list any country that previously refused entry for that food. Permits FDA to review foreign countries’ controls and standards to verify their implementation.
    Foreign Government Capacity: Requires FDA to “develop a comprehensive plan to expand the technical, scientific, and regulatory capacity” of foreign entities exporting food to the United States. Permits FDA to inspect foreign food facilities, and requires the refusal of imported food if a registered exporter refuses entry of FDA inspectors into an overseas facility. Directs FDA to establish a system to recognize bodies that accredit third-party auditors to certify eligible foreign food facilities meet federal compliance requirements. Requires FDA to establish overseas offices in countries selected by FDA to “provide assistance to the appropriate governmental entities of such countries with respect to measures to provide for the safety of articles of food.”
    Smuggled Food: Requires FDA to work with the Department of Homeland Security and Customs officials to develop a strategy to identify smuggled food and prevent its entry.
    Title IV – Other Provisions
    Funding and Staffing: Authorizes such sums in funding for fiscal years 2011 through 2015. The bill also sets staffing goals of 4,000 new field staff in fiscal year 2011, and a total of 17,800 through fiscal year 2014.
    Employee Protections: Creates a new process intended to prevent employment discrimination against individuals reporting food safety violations. The Department of Labor is directed to review and investigate complaints of such discrimination through an administrative process, subject to appeal in federal court.
    Jurisdiction: The bill notes that nothing within its contents shall be construed to alter the division of jurisdiction between the Department of Health and Human Services and the Department of Agriculture. Likewise, the bill notes that it shall not be construed in a manner inconsistent with American obligations under the World Trade Organization and other relevant international treaties.
    Summary of Tester Amendment as Modified (Included in Harkin Substitute Amendment as passed the Senate):
    · Clarifies that a “retail food establishment” shall not include the sale of food products at a roadside stand or farmer’s market, the sale of food “through a community supported agriculture program,” or the sale of food through any other “direct sales platform” designated by the Secretary.
    · Exempts from recordkeeping and hazard analysis requirements a “very small business” as defined by the Secretary, as well as those facilities whose direct sales (to consumers and local restaurants) exceed their sales to distributors AND whose annual sales total fewer than $500,000 (adjusted for inflation). Requires such facilities receiving exemptions to submit documentation to FDA that the owners have identified potential food hazards OR are in compliance with state and other applicable food safety laws. Permits FDA to revoke exemptions in the event of a food outbreak directly linked to the facility or to protect the public health.
    · Requires a study by FDA and the Department of Agriculture to help define the terms “small business” and “very small business” for purposes of the statute’s regulatory requirements.
    · Requires facilities receiving exemptions under the amendment to “include prominently and conspicuously…the name and business address of the facility where the food was manufactured or processed,” either on food labels or at the point of purchase.
    · Amends the timeline for the new hazard analysis requirements to specify that small businesses will have an additional six months to comply with the hazard control regulatory requirements (down from two years in the base bill) and very small businesses will have an additional 18 months to comply (down from three years in the base bill).
    · Exempts from new produce safety guidelines those farms whose direct sales (to consumers and local restaurants) exceed their sales to distributors AND whose annual sales total fewer than $500,000 (adjusted for inflation). Requires farms receiving exemptions under the amendment to “include prominently and conspicuously…the name and business address of the facility where the food was manufactured or processed,” either on food labels or at the point of purchase. Permits FDA to revoke exemptions in the event of a food outbreak directly linked to the facility or to protect the public health.

  • http://www.healthyfoodcoalition.org hhamil

    Unfortunately, the Republican and Democratic Staff’s summary that Bill Marler provided is not entirely correct.
    The first point under the Tester summary has it backwards. Strike the word “not” and it is correct.
    Interestingly, this clarification was necessary because the FDA wouldn’t make it and the FDA definition of “farm” under the registration requirement doesn’t include most farmers in the local, healthy food movement. In addition, though farms are clearly excluded in the statute, they are exempted in the regs only if they also qualify as a retail food establishment. Also, the FDA wouldn’t give the clarification that a business could be both a farm and a retail food establishment.
    How are those for good examples of why it is foolish to ratify the way the FDA does business, as the FSMA does?
    The 4th point under the Tester amendment summary is also wrong. The consumer notification is required only “if the facility “does not prepare documentation under paragraph (2)(B)(i)(I).”
    The 5th point is completely wrong and appears to say that Tester shortened the implementation time. All the Tester amendment did was change the wording of the effective date provision NOT the timeline. 18 months + 6 months is still 2 years and 18 months + 18 months is still 3 years.
    The 6th point is incorrect, too. The calculation for exemption also includes sales to retail food establishments not just consumers and restaurants. In addition, the second sentence uses the language from the consumer notification requirements for facilities under the new Sec. 418 rather than for farms under the new Sec. 419. The last sentence is correct but has nothing to do with farms and Sec. 418. It is about facilities and Sec. 418. For clarity, it would be better as a separate point further back up.
    I didn’t take the time to read the summary of the rest of the FSMA carefully because it has taken long enough just to correct what it says about Tester. I hope the earlier summary is more accurate.

  • http://www.healthyfoodcoalition.org Harry Hamil

    Unfortunately, the Republican and Democratic Staff’s summary that Bill Marler provided is not entirely correct.
    The first point under the Tester summary has it backwards. Strike the word “not” and it is correct.
    Interestingly, this clarification was necessary because the FDA wouldn’t make it and the FDA definition of “farm” under the registration requirement doesn’t include most farmers in the local, healthy food movement. In addition, though farms are clearly excluded in the statute, they are exempted in the regs only if they also qualify as a retail food establishment. Also, the FDA wouldn’t give the clarification that a business could be both a farm and a retail food establishment.
    How are those for good examples of why it is foolish to ratify the way the FDA does business, as the FSMA does?
    The 4th point under the Tester amendment summary is also wrong. The consumer notification is required only “if the facility “does not prepare documentation under paragraph (2)(B)(i)(I).”
    The 5th point is completely wrong and appears to say that Tester shortened the implementation time. All the Tester amendment did was change the wording of the effective date provision NOT the timeline. 18 months + 6 months is still 2 years and 18 months + 18 months is still 3 years.
    The 6th point is incorrect, too. The calculation for exemption also includes sales to retail food establishments not just consumers and restaurants. In addition, the second sentence uses the language from the consumer notification requirements for facilities under the new Sec. 418 rather than for farms under the new Sec. 419. The last sentence is correct but has nothing to do with farms and Sec. 418. It is about facilities and Sec. 418. For clarity, it would be better as a separate point further back up.
    I didn’t take the time to read the summary of the rest of the FSMA carefully because it has taken long enough just to correct what it says about Tester. I hope the earlier summary is more accurate.