Food Safety News
Senate Passes Historic Food Safety Bill, Now What?
by Helena Bottemiller Dec 01, 2010
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.
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Michael BulgerDecember 2, 201012:42 pmI will repost what I have posted on FoodSafetyNews:
“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. ”
@Greenconciousness: The word “seed” is not mentioned at all within the bill. Seeing as you refer to seeds intended for planting, they would not be effected at all by the Food Safety Modernization Act. It is a popular conspiracy-thoery on the web, but it has no basis in S.510.
The person in your example has no reason to think seeds would be considered “food”, nor soil as “contamination.” Likewise, they seem to be unaware that they would be exempt under S.510 if they chose to start a small pie business. This would be because they are operating from their private residence and presumably make under $500,000 a year and sell direct.
GreenconsciousnessDecember 2, 20107:28 pmThank you Michael Bulger
I read your post and I know it is widely reported that because tax measures originate in the house the senate bill is invalid but i see in what I think is your summary at food safety that the grower’s fee is NOT in the senate bill. I thought that was the “tax”.
Since it is not in the senate bill, what is the problem? Can’t all this be resolved in reconciliation? Don’t tell me this was all for nothing because if it has to go through the republican house……………
If you come back here can you please explain this a little more?
Michael BulgerDecember 2, 20109:05 pmI’d be happy to.
From what I understand, the sticking point right now is that the Senate version authorizes the FDA to collect fees for reinspection due to noncompliance, for recalls, and for the inspections of importers. The bill says that the fees are to cover the cost of the FDA’s duties under S.510. If the FDA is appropriated enough money from Congress, they aren’t allowed to collect fees above what they need.
That’s my understanding. That the fees are to cover the cost of the FDA regulating facilities that fail their initial inspection, as well as importers. The FDA can’t collect more than they need to cover their own costs.
Therefore, some are taking the position that this is not a revenue raising bill in the sense of the Article 1, Section 7 of the Constitution. The argument is being made that the fees don’t constitute a tax. Apparently, there is some history of things like this happening and being accepted by the House.
This report from the Congressional Research Service notes that the Supreme Court has ruled in the past that Article 1, Section 7, does not apply to “incidental” revenue. Seeing as the primary function of S.510 is not to raise revenue, it appears to have an easy out. It’s up to the House to recognize the Court’s rulings and, if necessary, work out a compromise with the Senate in committee.