Over the last two years, food producers large and small, consumer and public health groups, and Congressional leaders have come together to support legislation that would bring the most significant update to food safety laws in seven decades.  To the chagrin of everyone who worked hard to get S. 510, the FDA Food Safety Modernization Act (and the Tester/Hagen Amendment), passed out of the Senate Monday, the bill is now facing a significant uphill battle.

The future of S. 510, which received broad bipartisan support (73 yeas 25 nays), is now in jeopardy due to a provision in the bill that would allow the FDA to impose fees on importers, and on companies whose food is recalled because of contamination.  It now appears that S. 510 must be reconsidered in the Senate so it can be brought into compliance with Article 1, Section 7 of the U.S. Constitution, which says all revenue-raising measures must originate in the House.  However, finding floor time for the bill is looking less and less attainable since Senate Republican leaders are saying their caucus won’t vote on any bills until the Bush era tax cuts are extended to the uber-rich.  This means that the passage of S. 510 may not happen before the lame duck session ends.

Further attempting to torpedo the legislation is Sen. Tom Coburn’s (R-OK), a staunch opponent of the bill who threatens a filibuster if the bill returns to the Senate floor.  One can recall Coburn’s speech on the Senate floor two weeks ago, when he argued that lawyers (myself included) are all the food safety regulation Americans will ever need.

Now is not the time to let politics get in the way of a piece of legislation that was unanimously voted (yes, Sen. Coburn voted for it, too) out of the Senate H.E.L.P. committee over a year ago.  Those of us who have followed this historic measure from the time it was introduced to the moments just last week when we quivered in anticipation watching Senate Cloture votes on C-SPAN understand that the current version of the FDA Food Safety Modernization Act qualifies as a real piece of bipartisan legislation that addresses a tangible and important national problem.  

You may ask, “What’s the rush? Can’t we just wait it out?” 

Not a chance. 2010 is almost over and realistically 2011 is shaping up to be the most politically contentious year since Obama took office.  For any legislation, that means more roadblocks and more politics. Translation: “Anyone who believes this bill will pass if it is introduced during the next Congressional session is in ‘La-La Land’.” 

The bottom line, though, is this bill is a work of compromise and it is on the precipice of failure because of abhorrent politicking by Mitch McConnell and Co.  This bill was passed and all were satisfied and ready to move until a technical flaw was noticed (a flaw not seen by Senate Republicans and Democrats alike over the last year of debate).  Now is the time for our Senate and House leaders to do what they need to and finish what they started.  Let’s fix the flaw and do it now.

  • dangermaus

    The bill is dead because congress is in the pocket of lobbyists. Now, with the broad small farm exemption from Tester, the lobbyists from big ag who supported the bill have flipped. I think this shows that they (along with some germophobes and families that had personal tragedies) were the only ones who wanted FSMA in the first place.
    I really hope (but I doubt) that the new Republican House will move on tort reforms. If you label milk as “Raw” and put a blurb on it about risks (or, for that matter, label cigarettes as “carcinogenic”), no one should be able to sue you for it making you sick!

  • dangermaus – I think you give the Senators too much credit. I think both R’s and D’s simply missed Section 107, as did everyone else. It is interesting to see some in big ag coming out against S. 510 with Tester attached to it. Must have hit a nerve.
    Re Tort Deform – in every case – Raw Milk or any product – the manufacturer can raise the defense of “contributory fault” which in essence what you are arguing in favor of. For example: Assume that you (or I) with all our knowledge of Raw Milk pros and cons drank it anyway and became sick, our percentage of contributory fault would be high and any recovery would be reduced by our percentage of our fault. Someone with less knowledge or no knowledge would have less of a percentage fault. So, I think your concern is already contemplated under present law.

  • dangermaus

    Obviously, you’re incomparably more familiar with the theory and practice of injury law than me, but I just don’t buy that the matter is that simple. Couldn’t we just claim that the labeling was not sufficient to warn a person of the risk (even if the warning was 3 paragraphs long)? We might not win, but the person being sued would still have to hire a lawyer to defend himself, and would have little hope of recovering what he spent on his attorney’s fees, and might lose their insurance.
    A lawsuit from an incident last year with a stroller in a door on a Chicago Transportation Authority train (http://www.chicagobreakingnews.com/2010/10/woman-sues-cta-over-stroller-incident.html) is an example of why I think liability is screwed up. This story ticks me off because I see it as an example of how people seem to expect that if anything bad ever happens to you, you can sue somebody for it, even if you were doing something reckless/negligent/stupid/what-have-you related to the incident, with virtually no risk to yourself for bringing the suit.

  • Angry Voter

    The Tester amendment is worthless to many small farms. My farm sells mushrooms grown along the coast. 275 miles in one direction is nothing but open ocean and the other direction is national forest land. Literally less than 1% of the population of the USA lives within 275 miles of my farm. I have been selling dried speciality mushrooms dried all over the world and the country for many years now, but without ability to sell my product more than 275 miles from my farm is certain to put me out of business. It will be easier for a farmer in China to get his dried mushrooms on the American market than it will be for an American mushroom farmer.