Senate Approves Food Safety Bill 73-25, But Road Ahead Looks Rocky:

In a rare demonstration of bipartisanship, the Senate passed the most sweeping food safety reform bill in seven decades Tuesday morning. Despite high tempers in the wake of a contentious cycle, the upper chamber voted 73-25 vote to approve S. 510, the FDA Food Safety Modernization Act, a bill that would increase the Food and Drug Administration’s fractured oversight of an increasingly globalized food supply.

Though the bill’s passage–lauded by the major food industry, consumer, and public health groups–follows a similar measure that passed the House with bipartisan support in July 2009, the road ahead for comprehensive food safety reform is uncertain.  With the clock running on the lame duck session, most advocates for the bill want to see the House take up the Senate version as soon as possible to get the legislation to President Obama’s desk.

In a statement yesterday, Obama called on the House to act quickly on the legislation.  “I urge the House–which has previously passed legislation demonstrating its strong commitment to making our food supply safer–to act quickly on this critical bill, and I applaud the work that was done to ensure its broad bipartisan passage in the Senate.”

Sen. Tom Harkin (D-IA), a key proponent of the measure in the Senate, indicated before Thanksgiving that key leaders in the House agreed to take up the Senate version, but it is not clear that is the game plan for House leadership.  The House version of the bill requires far more frequent inspections, augments the cost of the bill with a flat $500 fee for each food facility, and does not contain a hard-fought amendment to exempt small farms and food producers from certain new regulations.

House lawmakers who worked tirelessly to get bipartisan support for their version in 2009 have been noncommittal about adopting the Senate version.

“The Senate bill makes improvements to FDA’s existing authorities to ensure the safety of the American food supply just as the House bill does,” Rep. John Dingell (D-MI), who has been working on food safety legislation for years, told Food Safety News yesterday.  “I commend my colleagues for their hard work over the past year and four months.  However, there are some remaining concerns with the final Senate legislation, but the Senate bill is a still a giant leap forward toward ensuring the safety of the American food supply.”

“I look forward to discussing the Senate bill with my House colleagues and determining what the appropriate next steps should be to ensure that we provide the greatest protections for American’s consumers,” added Dingell.

To add to the uncertainty in the House, large produce industry groups, including the United Fresh Produce Association and the Produce Marking Association, are working feverishly to convince lawmakers that the final legislation should not include the small farm exemptions, which were recently adopted into the Senate bill at the urging of Sens. Jon Tester (D-MT and Kay Hagan (D-NC).

The Tester-Hagan amendment intends to protect small farmers and the burgeoning local food movement from cumbersome regulation.  The larger produce industry, which is in favor of broad safety requirements to help prevent dangerous and economically damaging foodborne illness outbreaks, has remained squarely against any blanket exemptions based solely on farm size or geography.

“We’re pushing for a conference and for the removal of the Tester amendment.  We think there is time to do conference,” Robert Guenther, executive vice president of public policy at United Fresh, told Food Safety News yesterday.  “[The amendment] fundamentally undermines the entire legislation, the rest of the bill is science- and risk-based.”

Guenther said the industry would continue to push against the amendment, which he called “arbitrary” and “politically expedient.”

Though disagreements remain, the prospect of a conference committee to iron out key differences is seriously in question with so many competing items on the Congressional agenda–including the Bush-era tax cuts and the defense reauthorization bill, which includes a provision to repeal the controversial “don’t ask, don’t tell” policy.

Casting further doubt on the bill’s chances at becoming law before the new year, Capitol Hill newspaper Roll Call reported late last night predicted the food safety bill will likely be sent back to the Senate because Democrats violated Article 1, Section 7 of the Constitution, which clearly states that revenue-raising provisions originate in the House.

According to Roll Call, Section 107 of S. 510, which allows for the collection of fees, has “ruffled the features of Ways and Means Democrats” who are expected to use a procedure known inside the beltway as “blue slipping” to block the legislation.

“We understand there is a blue slip problem, and we expect the House to assert its rights under the Constitution to be the place where revenue bills begin,” a GOP aide told the paper.

If the House blue slips the bill, Senate Democrats would have to use precious floor time to go back through procedural votes to re-introduce an amended version of the bill because Sen. Tom Coburn (R-OK) would, as he did earlier this year, object to a unanimous consent agreement to limit debate on the bill.

Sen. Coburn remains the most outspoken opponent of the legislation, arguing that it does not address systemic problems with federal food safety oversight and is too costly. Coburn introduced a substitute bill on Tuesday that failed in a 36-62 vote.