Jolley: Will We Finally Get A Modern Food Safety Bill?

The Senate took one baby step toward reforming food safety when it passed S. 510, the Food Safety Modernization Act, Tuesday morning. All that remains between food safety in the twenty-first century and the end of the mid twentieth century ‘scratch and sniff’ system is that governmental rarity – compromise.

The year-and-a-half old House bill now must be married up with the earmarked Senate bill in just the few days left before both groups break for the holidays.

Bill Marler and Shawn Stevens, two sharp-edged legal minds, have watched the very slow gestation of the Senate bill from two divergent points-of-view. Marler is the lawyer behind most lawsuits regarding food safety failures; Stevens is the lawyer who sits with the defendant and says, “But, wait! There might be more to this than meets the eye.”

Stevens took a cautiously optimistic approach to the possibility that something resembling the Senate bill might soon become law. He told me, “Having worked with the food industry for more than a decade, I think the immediate impact of the bill remains debatable since the vast majority of food processors are highly committed to food safety and have already adopted robust food safety systems. Moreover, some of the more notable enhancements to food safety in recent years have been driven mostly, and in my view will continue to be driven, by stringent customer requirements rather than new legislation.”

“With that said, I am very excited about the proposed improvements in national food-borne illness surveillance and traceability. These efforts will increase our ability to quickly detect potential problems and find quick solutions. Better surveillance and traceability will also, from a litigation standpoint, significantly enhance our confidence in outbreak investigations and our ability to respond appropriately to both meritorious and meritless foodborne illness claims.

Yeah, lawyers talk like that.

Marler was more circumspect, possibly because he’s been disappointed before. “I am hopeful that with risk-based inspections by the FDA and a more focused surveillance by the CDC, we will see fewer foodborne illness outbreaks and fewer illnesses.”

“Hopeful,” like let’s cross our fingers and pray for the best?

Marler had blogged shortly after the bill passed, “From a pro legislation perspective, I am pleased that it has passed the Senate, but I wonder how it will be able to get through the House and to the President’s desk before year’s end. I am most heartened that passage was one of the most bi-partisan votes we have seen in a very long time. It is good to see R’s and D’s coming together to actually try and doing something good for the American people.”

Although the Senate voted 73 to 25 to approve the Act and it enjoyed strong bipartisan support, passage was delayed for months until the lame duck session by a stubborn Senator Tom Coburn of Oklahoma, who forced the bill to run a gauntlet of procedural votes before Tuesday’s vote.

Coburn offered a stripped down version of the bill, eliminating many of the bill’s requirements claiming it was unaffordable and the free market would lead to the necessary changes.

Both the House and Senate bills require food facilities to implement plans to minimize the risk of food contamination, increase F.D.A. inspections and give it mandatory recall authority. There are important differences starting with the House bill’s annual facility registration fee to help defray the costs of increased inspections. The Senate bill gives food facilities a free pass, a provision supported by most trade associations including the National Cattlemans Beef Association, American Meat Institute, North American Meat Processors Association and National Meat Association.

The NCBA is also opposed to Senate version because Tester/Hagan amendment exempting small food producers and processors. NCBA’s Executive Director of Legislative Affairs Kristina Butts said “The exemption weakened the legislation and that basing exemptions on size, location and proximity to the market sets a dangerous precedent for our nation’s safety system.”

“NCBA supports improvements to our nation’s food safety system that are based on sound science, focused on industry application and have a strong research foundation. But the Tester/Hagan amendment weakens S. 510 as food safety knows no size.”

President Obama, always a strong supporter of improvements in food safety, said, “With the Senate’s passage of the Food Safety Modernization Act, we are one step closer to having critically important new tools to protect our nation’s food supply and keep consumers safe.”

Opponents are fighting what they consider to be a radical federal takeover of the America food supply. Comments from some long-standing as well as ad hoc organizations claim it will criminalize home gardens and require onerous, expensive paperwork from small producers. One of the most alarming, over-the-top statements I found was, “If accepted [S 510] would preclude the public’s right to grow, own, trade, transport, share, feed and eat each and every food that nature makes. It will become the most offensive authority against the cultivation, trade and consumption of food and agricultural products of one’s choice.”

Those statements might be a little overboard. Trying to allay unfounded fears, CNN outlined the bill’s key points:

- The FDA would have the authority to issue direct recalls of foods that are suspected to be tainted, rather than relying on individual producers to voluntarily issue recalls.

- Food producers would be required to develop written food safety plans, accessible by the government in case of emergency. These would include hazard analysis and a plan for implementing corrective measures.

- The Secretary of Health and Human Services would be required to create a food tracing system that would streamline the process of finding the source of contamination, should an outbreak occur.

- Importers would be required to verify the safety of all imported foods to make sure it's in accordance with U.S. food safety guidelines.

Chuck Jolley is a free lance writer, based in Kansas City, who covers a wide range of ag industry topics for Cattlenetwork.com and Agnetwork.com.

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