A serious constitutional snafu is threatening to derail pending food safety legislation, which passed the Senate by a 3-1 margin early Tuesday.

The FDA Food Safety Modernization Act, S. 510, would be the most significant update of food safety laws in over seven decades, but it has become clear that the Senate made a potentially critical error by including a provision that would allow the FDA to impose fees on importers, and on companies whose food is recalled because of contamination.

Article 1, Section 7 of the U.S. Constitution says all revenue-raising measures must originate in the House. This error will almost certainly mean that the legislation will have to be reconsidered in the Senate, a major setback considering the precious floor time it could take to jump though the necessary procedural hoops: namely circumventing Sen. Tom Coburn’s (R-OK) filibuster threat.

The way forward for the beleaguered legislation–which seemed to catch a big break with its 73-25 passage in the Senate this week–remains highly uncertain.

The Hill reported Wednesday that senior Democrat leadership aides still believe they can take another vote. “We are confident that we can work with our House colleagues to find a path forward and get this bill to the president before the end of the year,” one aide told the Capitol Hill newspaper.

As J. Taylor Rushing and Mike Lillis aptly noted yesterday: “While the changes themselves might not be too complicated, the Senate will have a much tougher time passing the bill again. Coburn is expected to object to passage by unanimous consent, as he has in the past, and Senate Republican leaders say their caucus won’t vote on any bills until the expiring tax cuts are dealt with.”

House Majority Leader Steny Hoyer (D-MD) said Wednesday the House was prepared to move on the Senate bill if the constitutional issues were resolved.

“While we think our bill was much better, we’re prepared to pass a bill along the lines that they passed,” said Hoyer. “Unfortunately, they passed a bill which is not consistent with the Constitution of the United States.

“It has to be a House bill, because it has revenues in it. … That’s a constitutional requirement. … The Senate knows this rule, and should follow this rule. … Nobody ought to be surprised by this rule,” the Hill reported Hoyer as saying.

Hoyer said he met with Sen. Tom Harkin (D-IA) to address the constitutional difficulties in an effort to move the bill forward before the end of the dwindling lame duck session.

“I’m hopeful that we will pass that back to the Senate in a corrected version … I presume they’ll be able to pass it — it passed pretty handily in the Senate,” said Hoyer.

Whether Senate Democrats will allow the food safety debate to consume any more floor time with so many other high-level political priorities, like the Bush tax cuts, the defense authorization, which includes a provision to repeal “don’t ask, don’t tell,” remains to be seen.

  • So is it still going to be illegal to grow your own food in America?

  • Troy

    There are alot more provisions of this bill that are UNCONSTITUTIONAL besides just an itty-bitty revenue issue and those that pass this bill should be considered unconstitutional as well!!!!! My reasons for this are in very plain site of the bills’ text, and I wish to list them in this comment in case you have not heard what this bill will allow the United States Government the authority to do. This authority is of great concern to MANY Americans.
    S 510 fails on moral, social, economic, political, constitutional, and human survival grounds.
    1. It puts all US food and all US farms under Homeland Security and the Department of Defense, in the event of contamination or an ill-defined emergency. It resembles the Kissinger Plan.
    2. It would end US sovereignty over its own food supply by insisting on compliance with the WTO, thus threatening national security. It would end the Uruguay Round Agreement Act of 1994, which put US sovereignty and US law under perfect protection. Instead, S 510 says:
    Nothing in this Act (or an amendment made by this Act) shall be construed in a manner inconsistent with the agreement establishing the World Trade Organization or any other treaty or international agreement to which the United States is a party.
    3. It would allow the government, under Maritime Law, to define the introduction of any food into commerce (even direct sales between individuals) as smuggling into “the United States.” Since under that law, the US is a corporate entity and not a location, “entry of food into the US” covers food produced anywhere within the land mass of this country and “entering into” it by virtue of being produced.
    4. It imposes Codex Alimentarius on the US, a global system of control over food. It allows the United Nations (UN), World Health Organization (WHO), UN Food and Agriculture Organization (FAO), and the WTO to take control of every food on earth and remove access to natural food supplements. Its bizarre history and its expected impact in limiting access to adequate nutrition (while mandating GM food, GM animals, pesticides, hormones, irradiation of food, etc.) threatens all safe and organic food and health itself, since the world knows now it needs vitamins to survive, not just to treat illnesses.
    5. It would remove the right to clean, store and thus own seed in the US, putting control of seeds in the hands of Monsanto and other multinationals, threatening US security. See Seeds – How to criminalize them, for more details.
    6. It includes NAIS, an animal traceability program that threatens all small farmers and ranchers raising animals. The UN is participating through the WHO, FAO, WTO, and World Organisation for Animal Health (OIE) in allowing mass slaughter of even heritage breeds of animals and without proof of disease. Biodiversity in farm animals is being wiped out to substitute genetically engineered animals on which corporations hold patents. Animal diseases can be falsely declared. S 510 includes the Centers for Disease Control (CDC), despite its corrupt involvement in the H1N1 scandal, which is now said to have been concocted by the corporations.
    7. It extends a failed and destructive HACCP to all food, thus threatening to do to all local food production and farming what HACCP did to meat production – put it in corporate hands and worsen food safety.
    8. It deconstructs what is left of the American economy. It takes agriculture and food, which are the cornerstone of all economies, out of the hands of the citizenry, and puts them under the total control of multinational corporations influencing the UN, WHO, FAO and WTO, with HHS, and CDC, acting as agents, with Homeland Security as the enforcer. The chance to rebuild the economy based on farming, ranching, gardens, food production, natural health, and all the jobs, tools and connected occupations would be eliminated.
    9. It would allow the government to mandate antibiotics, hormones, slaughterhouse waste, pesticides and GMOs. This would industrialize every farm in the US, eliminate local organic farming, greatly increase global warming from increased use of oil-based products and long-distance delivery of foods, and make food even more unsafe. The five items listed — the Five Pillars of Food Safety — are precisely the items in the food supply which are the primary source of its danger.
    10. It uses food crimes as the entry into police state power and control. The bill postpones defining all the regulations to be imposed; postpones defining crimes to be punished, postpones defining penalties to be applied. It removes fundamental constitutional protections from all citizens in the country, making them subject to a corporate tribunal with unlimited power and penalties, and without judicial review. It is (similar to C-6 in Canada) the end of Rule of Law in the US.
    S 510, the Food Safety Modernization Act*, may be the most dangerous bill in the history of the US. It is to our food what the bailout was to our economy…don’t be fooled by the word “safety”, this could quite possibly be the biggest threat to your “safety” as an American Citezen that has ever been witnessed.

  • samjam

    Why would we even let these criminals that hate America stay in office….at all?? Why wouldn’t we focus on completely getting rid of these criminals that either don’t know the constitution or don’t care. Personally I believe they were hoping WE wouldn’t notice. They do that a lot. Fire every damned one of them!!! Now!!!

  • Michael Bulger

    Seeing as the authority to collect fees as granted under Section 743 of S.510 is a revenue neutral authority, I would think there is Congressional precedence for refraining from blue-slipping this widely supported piece of legislation. I don’t think it would be at all difficult to find a bill that had undergone the same procedure and was passed congenially by the House. Similarly, in the history of our great nation an equivocal misfortune must certainly have been settled in committee. Considering the pressing matters before the Congress, one would hope that they do not fritter the time by sending such a popular bill back to the Senate.

  • Amy

    In response to Troy’s comments I have found this on the Consumer Federation of America’s website. I have seen many similar comments to Troy and truly do not know what to believe anymore.
    S. 510: Frequently Asked Questions/Myths
    Would S. 510 outlaw home gardens and family farms? NO.
    S. 510 does not outlaw home gardens or family farms. In fact, the bill explicitly states that the produce standards “shall not apply to produce that is produced by an individual for personal consumption.” In addition, the bill also contains an exemption from regulations for small facilities and small farms, which was purposefully included to protect America‟s family farms. This includes food sold through farmers‟ markets, bake sales, road side stands, public events, community supported agriculture, and organizational fundraisers.
    Would S. 510 criminalize seed savings? NO.
    S. 510 does not create any new rules in regard to the practice of saving seeds for use from year to year, and does not outlaw, criminalize, or require any specific agricultural or growing practice.
    Would S. 510 outlaw traditional organic growing methods? NO.
    Section 105 of S.510 explicitly states that new produce safety standards cannot “include any requirements that conflict with or duplicate the requirements of the national organic program.”
    Would S. 510 bring everyone who grows any food under the jurisdiction of the Department of Homeland Security? NO.
    S. 510 maintains the same food safety jurisdiction that exists under current law.
    Would S. 510 include new recordkeeping requirements for farms? NO.
    S. 510 does not require that farms keep any new food safety-related records.
    Would S. 510 charge farms and small businesses new registration fees? NO.
    S. 510 does not charge registration fees of any kind.
    Would S. 510 imprison people who sell raw milk? NO.
    S. 510 does not establish any restrictions on the sale of raw milk. The bill merely directs the FDA to review existing regulatory hazard analysis and preventive control programs in existence, such as the Grade „A‟ Pasteurized Milk Ordinance, before creating any new hazard analysis and preventive control rules.
    Would S. 510 require American food producers or farmers to be subject to WHO rules,
    UN food safety standards, or Codex Alimentarius? NO.
    S. 510 requires the FDA to come up with a plan to work with foreign countries that import food into the United States to ensure that Americans who purchase imported products can be assured of their safety, but does not require the adoption of any international standards. The bill also explicitly clarifies that dietary supplements remain subject to U.S. jurisdiction, not the Codex Alimenatrius.
    Would S. 510 require farms and more facilities to register with the FDA? NO.
    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.
    Would S. 510 give the FDA new authority to inspect farms? NO.
    S. 510 increases inspections for registered food facilities but does not change FDA‟s jurisdiction over farms.

  • See my last few posts for details on where I think things are and some perhaps ways out of the mess.
    In Summer 2009, I asked Senate R staff why they did not have funding in S. 510. I was told that they did not want to vote on a tax increase so there was not revenue raised in Senate Bill. They then expected to simply agree to House Bill 2749 $500 registration fee in conference and avoid the vote.
    Where are we now? I do not think Section 107 of S. 510 is a tax that goes against the origination clause, but my opinion does not count. At this point, I think the only option is for the Senate to agree to strip Section 107 out (I do not believe this requires a vote, although it may well). Then I think the two bills can go to conference and NOT require a re-vote by either chamber. But, what I am hearing is that both House and Senate leadership (Rs and Ds) think that the Senate will need to vote to strip Section 107 (will need to overcome Coburn filibuster) and then the House must assent to the Senate Bill – shades of vote of Health Care. However, some House members are pulling out over the Tester Amendment because they think the exclusions to small farmers are too broad.
    Hopefully, some level of sanity prevails over the next few days or weeks.

  • dangermaus

    I still think this bill is more about politicians appearing to be responsive to overblown, out-of-context news headlines, and special interests trying to raise the cost of entry into the food production market than it actually is about making any sort of real difference in salmonella on people’s plates.
    The supporters of this bill like to throw around an estimate of 76,000,000 illnesses per year without any context, or explanation of where that number came from to scare people into supporting the bill, but I have yet to see any estimates of how many instances of food-borne illness they intend this bill to prevent. If we still have 76,000,000 cases food-borne illnesses (by the same estimation) in 2015, will supporters of the bill then suggest it be revoked? Of course not… Plus, the FDA will undoubtedly make up some “new” formula for the estimate that makes it look like they’ve done something other than waste tax-payers money.
    At least the Tester amendment keeps FSMA from doing as much harm as it would have done to the people who are actually helping the real problems with food in this country – small farmers who sell directly to consumers.

  • Elo

    I think you are a mole, Troy hit it right in the nail.

  • Johnny Freedom

    In response to Amy’s response to Troy,
    The Consumer Federation of America is lying, here is text from the actual bill:
    “(d)Alternative Inspection Frequencies- With respect to a subcategory of food establishment under category 2, 3, 4, or 5, the Administrator may establish alternative increasing or decreasing inspection frequencies for subcategories of food establishments or individual establishments…”
    There is a clear reference to individual establishments, which means the Consumer Federation of America is likely getting paid under the table to tell you otherwise, which you should find very disturbing. I’m willing to bet Snopes.com tells the same bull faced lie. I recommend you read the rest of the bill, and no longer trust the CFA as far as you can throw it.

  • Ben Mark

    I don’t know in which sunshine world you are living in, writing these comments. When I drove down a road today and have seen huge fields where a farm operation has already sprayed the cucumber vines with poison in order to kill them off and get prepared for the next crop, workers where aut there and picking the cumcumbers and packed it in boxes loaded on pick-up trucks, then I really ask the question why is everybody so bad against the food safety bill and traceback. Is this the stuff we get on the roadside stands and little farmers markets? Bon Appetit! How do you count the people getting sick, allergies and you name it, without knowing why, just because they ate a cucumber, believing this is some of the healty greens we should eat. For all of you, writing those stories, these people coming in after harvest are called pinhookers. No wonder the small producers fighting the food safety bill as well as the ag coporations. The loosers are the consumers, paying huge sums of money, trusting in healty food and getting sick.

  • Michael Bulger

    @Johnny Freedom
    Actually, the text you quoted occurs nowhere within S.510. You must be looking at another bill.

  • baobei

    @Johnny Freedom
    That text you quoted is from the “H.R. 875 Food Safety Modernization Act Of 2009”

  • Jihad Buster

    Amy is definitely a MOLE. Troy is exactly right and this present government is supporting a JIHAD on our freedoms. by using this supposed helpful legislation on us. The left is controlling us and they are only 20% of the population. Unfortunately they have some powerful people in powerful placed, that is why this crap they’re selling us just keeps coming. it is our responsibility to bust this stuff and people like Troy are the type of people who can shed light on this kind of bill that will enable people to make the right decision. We now must contact our senators and tell them to NO on S.510 if and when it comes back around. We’ve been given a second chance to get it right.

  • Katrina Pritchard

    7 ‘‘food production facility’’ means any farm, ranch,
    8 orchard, vineyard, aquaculture facility, or confined
    9 animal-feeding operation
    Straight from the bill guys!!
    Pretty messed up.. there goes growing your own food!!