S. 510 – FDA Food Safety Modernization Act – The Small Farms and Businesses Assistance Act

In early 2007, just after the first large-scale peanut butter Salmonella outbreak, I was meeting with Senator Durbin’s staff on legislative language that eventually formed the basis of S. 510.  After spending the fifteen minutes making my pitch, I was politely ushered out the door.  As I walked down the hallway towards the elevator out of his office came then Senator Obama.  In one of those awkward moments that can only happen in a Senate office building, we walked ignoring each other towards the elevator.  

As the elevator opened I decided to reintroduce myself, but before I could he asked why I was in Durbin’s office.  I explained that I was pitching Durbin’s staff on why food safety legislation was so needed and why it was so important to put “this trial lawyer out of business.”  He smiled and said, “I know you, you’re the E. coli guy.”  I smiled and we said our goodbyes.

Now President Obama has the opportunity to sign the first major piece of food safety legislation in my lifetime.  True, even if S. 510 passes, it will need to be in Conference with legislation passed in 2009 by the House, but it seems the time has come to recognize that sickening 76,000,000, hospitalizing 325,000 and killing 5,000 with food in the USA is not acceptable.

So, what appears to be moving towards a vote in the Senate in September is:

USDA and FDA jurisdiction over foods remains unchanged:  Only foods already regulated by FDA will be subject to S. 510.  As a memo from Senate staff confirms, “Section 403 maintains the existing firewall between FDA and the USDA regulated foods and agricultural products.”  Honestly, whether that is a good or bad idea may well be the subject of another Publisher’s Platform.  Roughly, think beef, poultry, lamb as USDA and FDA the rest–except for pepperoni pizzas.

Protections for Farmers Markets, Cottage Industries, and Direct Farm-to-Market Sales:  Small entities that produce food for their own consumption or market the majority of their food directly to consumers or restaurants are not subject to registration or new recordkeeping requirements under S. 510. This includes food sold through farmers markets; bake sales, public events, and organizational fundraisers.

Appropriate produce safety standards:  In coordination with the Secretary of Agriculture, FDA develops science-based standards for the safe production and harvesting of fruits and vegetables. Priority is given to specific fruits and vegetables that have the highest risk of food borne illness outbreaks. Flexibility is given for different growing, production, and harvesting techniques. FDA has the discretion to limit produce safety standards for small and very small entities that produce or harvest food, which pose little or no serious risk to human health. Consideration is also given to conservation and environmental standards already established by federal natural resource and wildlife agencies.

Only facilities defined under the Bioterrorism Act need to register:  Under the Bioterrorism Act of 2002, certain food businesses were considered “facilities” and had to register with FDA. Farms and restaurants were exempted. This definition is not changed in S. 510. If an entity does not need to register now, it will not need to register under S. 510.

Small food processors assisted by legislation:  According to Senate staffers, small businesses are given regulatory flexibility throughout S. 510. For example, the Secretary may modify or exempt small processors from new HACCP requirements based on size and risk. The legislation also requires the FDA to publish several user-friendly small entity compliance guides to assist firms with the implementation of new food safety practices.

Flexibility for organic food:  Consideration is given to the unique agricultural practices and requirements of organic foods under the Organic Foods Production Act of 1990.

Increased agriculture extension training opportunities:  The bill requires FDA to coordinate with the agricultural extension in educating growers and small processors about any new practices required by S. 510. Necessary funds are authorized to conduct these extension activities. The bill also provides for the training and education of state, local, and tribal authorities to facilitate the implementation of new standards under the FDA Food Safety Modernization Act.

Risk-based traceability:  The ability to trace back potentially unsafe food in the event of a foodborne illness outbreak is important. For the purpose of traceability, farms and small businesses that are not food facilities are not expected to create new records.

Next week I am having lunch with the President.  I only hope it is safe.

  • Laura Simpson

    How will the bill affect local farmer’s markets and food clubs?

  • Wendy Langacker

    Please identify the section where small producers and farmers markets are protected.

  • dangermaus

    I agree with the “Put this trial lawyer out of business” part, but somehow I doubt that you’re *actually* interested in that. In fact, I’m suspicious that the reason some lawyers favor this bill is that the expanded record-keeping requirements in this bill are in there to make it *easier* for people to sue producers.
    I also suspect that the week after this bill is passed, the paranoid fear-mongers that got it introduced in the first place will immediately turn around and declare that the safeguards put in place to protect small farms are “loopholes” and will advocate subjecting them to FDA oversight as well.
    This is an expensive Washington power grab lobbied for by big agribusiness and opposed by small farmers. One certainly could issue power to some agency to recall food products without the rest of the crap included in this bill. Don’t keep giving away our freedom in the name of stupid peoples’ inability to take care of themselves, like not choosing not to wash their lettuce…

  • Sharon Zecchinelli

    Yes, please Mr. Marler, identify the sections where small producers and farmers are protected, exempt from all regulations in this bill.

  • Wendy, allow me. Allow me. Please use this link for reference: http://help.senate.gov/imo/media/doc/WHI10337.pdf
    Page 4, line 6. Page 10, line 8. Page 17, line 10. Page 18, line 14. Page 19, line 1. Page 19, line 5. Page 20, line 8. Page 22, line 17. Page 23, line 22. Page 24, line 4. Page 24, line 22. Page 25, line 1. Page 25, line 23.
    I could go on, because this bill continually protects small entities, but I have already read this bill.
    Dangermaus seems to have an overabundance of paranoia and, might I say, a disheartening insensitivity to the victims of our current system.
    Sharon, there is no clear cut definition of “small”. Working that out will be a public process after the passage of the bill. Then the appropriate exemptions will be mandated.

  • Doc Mudd

    Let’s keep in mind the intent of the legislation is to protect food consumers, not to protect trendy profiteers.
    This bill is well written and should be passed as-is. There is ample provision for USDA to bend the rules to accomodate chronic whiners — if there is no compromise to food safety.

  • cmarko

    Bill, you want to stop the deaths, break up big agri business, break up the CAFOs (Concentrated animal feeding operations) and return cattle to grazing only. The CAFOs are where many diseases originate from – after all the cattle are fed GMO Corn, which makes them sick, so they pump them full of antibiotics and they stand in their crap all day. Gee sounds really healthy.
    Break up these chains, make it so you have to say where every ingredient comes from and where your meat is from. Open up the slaughter houses to outside inspection. After all from what I have read, this where the e-coli is coming from in the first place. Start there. The more decentralized our food system is, the safer it will be because any problems we have won’t go far. Just make them test the milk or meat randomly. Yes, it will be more expensive with the animals returning to grazing, but then people will eat less meat because they won’t be able to afford it and they will be healthier.
    Read the Omnivores Dilemma and In Defense of Food if you want to really understand why people are getting sick or having long term health problems. After all, how many people die from heart disease earlier than they should vs. die from food poisoning? Here are the statistics:
    In 2006 636,000 people died from heart disease, whereas 5,000 from food poisoning? Start this obsession with e-coli and focus on the much bigger problem.

  • Chris

    @Doc Mudd
    >Let’s keep in mind the intent of the legislation is to protect food consumers, not to protect trendy profiteers.
    Trendy profiteers? Ever been to a farmers market? ever? There soooo rich…… not
    >This bill is well written and should be passed as-is. There is ample provision for USDA to bend the rules to accomodate chronic whiners — if there is no compromise to food safety.
    Chronic whiners like huge factory farms that are upset that we don’t want their discussing food? I guess your really upset about people who have a backbone and won’t put up with this kind of garbage.
    Yes, lets get all our food from a disgusting factory farm only cares about money. Who processes millions of animals, and sprays toxic chemicals over everything so it looks good from the outside. Lets imprison the small farmer because he’s not planting toxic GMO’s and splicing DNS from bacteria and using viruses to make his product like the factory farms. His dangerous food comes from thousands of years heirloom seeds, and animals that were passed down from generations. Lets get rid of him.
    Maybe your kids can get that produce instead. When your kids get hamburger they can get it from a factory farm that were pumped with antibiotics, ate GMO foods, and mixed in with 150 other cows when they grinded the meat. Your right there’s probably not a bacteria issue there or any issue at all.
    Will you protect the huge factory farms then when the FDA turns the other away from the factory farm then? When your kids go sterile from some ‘unknown reason’. Will you still support factory farms?
    Do you even know how GMO’s are created? Focus, on the big problems first.

  • Bill, I enjoy following you very much.
    Please look over the Plant Your Dream Blog Link
    and give me some insights into why you imagine the FDA
    should be given more authority based on some of the links
    regarding what they have been up to.
    Serious and dangerous leanings.
    If we look to real science, we cannot support GMO.
    That is just about one of the most Unsafe Food Safety moves around.
    We need to redefine Food Safety as real food, healthy food.
    By the way, I could never eat butter for many years.
    In the last four months or so, I discovered raw pasture fed butter.
    Suddenly after many, many years unable to digest it,
    I can.
    Feel free to contact me.
    I admire your work.
    Leslie Goldman
    Your Enchanted Gardener
    Plant Your Dream Blog
    I would like to invite you to particpate in
    the Dialogue on Science, Ethics, and Food On Facebook