The food safety bill–S. 510, the Food Safety Modernization Act–which some had given up for dead, was revived late Sunday attached to a shell bill and passed unanimously just before the Senate adjourned for the day.

The bill, with the Tester/Hagan small farm exemption intact, now goes back to the House.  The action will likely put the food safety law on President Obama’s desk before Christmas.

“Yes, consumers, there is a Santa Claus!,” effused the Consumer Federation of America.

Sen. Tom Harkin, D-IA, a lead sponsor of the bill, called the vote “a critical victory” bringing the bill one step closer to completion.

“I look forward to standing with the President as he signs this important measure into law, and in so doing, giving Americans one of the best holiday gifts they can receive this year — the assurance that the foods they are eating are safer,” Harkin said.

Sunday’s Senate move came as a surprise, especially because no Republican objected to Senate Majority Leader Harry Reid’s request for his colleagues to pass the food safety bill by unanimous consent.  

No one objected, not even Republican Sen. Tom Coburn of Oklahoma.

Coburn, who almost single-handedly has tried to bump off the bill, had threatened to filibuster anything containing food safety, which would have prevented the Democrats from getting through the rest of their lame-duck session agenda. The question Sunday was why Coburn gave up.  A spokesman for the senator told the Washington Post he did not know why his boss relented.

Whatever the reason, the bipartisan support seemed almost miraculous, given that Reid’s success was not even predicted by his own staff earlier in the day.    

“Tonight we unanimously passed a measure to improve on our current food safety system by giving the FDA the resources it needs to keep up with advances in food production and marketing, without unduly burdening farmers and food producers,” Reid said in a statement.

The majority leader said this marks the first time in almost a century that the food safety system has been updated in such a broad manner.  He called it a “common-sense issue with broad bipartisan support.” 

The food safety bill has had a tortured life.  The House passed its version (H.R 2749) in July of 2009 by a vote of 283 to 142.  The Senate did not move on its version (S. 510) until last month after a compromise (the Tester/Hagan Amendment) was reached between small farmers, Big Ag and consumer groups.  The final vote was 73 to 25.

However, Section 107 of S. 510 contained a fee provision that the House Parliamentarian considered a tax in violation of the “Origination Clause” of the Constitution, which states that the House must initiate revenue measures.

To overcome the Senate’s procedural error, the House then appended S. 510 to the “Omnibus Spending Bill,” essentially the 2011 budget.  That bill was narrowly approved by a 212 to 206 vote, but when the Senate refused to take up the spending bill, the food safety legislation was left hanging — until Sunday evening.

To get the food safety bill back to the House without the constitutional flaw, the Senate used H.R. 2751 as a vehicle, amending it with the language of S. 510.  Ironically, H.R. 2751 was originally a House version of the “cash for clunkers” bill, a shell with just enough life in it for the Senate’s purpose.  Reid predicted the House will take up the measure Monday night or Tuesday.

Rep. John Dingell, D-MI, commended senators for “their persistence and cooperation,” and observed that the bill had seen more procedural “fits and starts than any other.”

With one step remaining before it reaches the president’s desk, Dingell said, “I am confident my colleagues in the House, both Democrats and Republican, will rise to the occasion.”


The bill’s goal is to increase the Food and Drug Administration’s powers to keep food safe by increasing inspections of food facilities, placing stricter standards on imported foods and giving the agency broader authority to order a recall.

As word of the bill’s new life got out, advocates expressed their relief.  Many were part of a coalition that had sent a letter Sunday to Reid and Republican Leader Mitch McConnell, asking them to act quickly to save the bill before the end of the session.

Caroline Smith DeWaal, food safety director for the Center for Science in the Public Interest, called it  “a huge victory for consumers following a weekend cliffhanger,” and said both consumer and industry supporters had been bracing for bad news. “Senator Harkin, Senator Reid, and Senator McConnell are to be congratulated on their skill in making sure American families will enjoy greater protection and safer food in 2011 and beyond,” she said.

“After spending all last week in D.C. meeting with Senate and House leaders, I honestly thought the bill had no chance,” said Bill Marler, food safety attorney and publisher of Food Safety News.  “I think it says something good about Democrats and Republicans this holiday season.  The process was not pretty, but politics was put aside for this and the safety of the U.S. food supply has been enhanced.”

Jean Halloran, director of Food Policy Initiatives at Consumers Union, said, “This is a wonderful day for consumers. This day will be especially important to families whose children have suffered lasting damage to their health, and families who have even lost a child, because of contaminated food. Many of them have worked hard for this bill to prevent others from having to go through a similar ordeal. This bill gives FDA essential tools like mandatory recall authority to insure that the food we eat is safe.”