Food Safety Modernization Will Get a Vote This WeekNovember 16, 2010 - by Donny Shaw
The FDA Food Safety Modernization Act (S. 510) is on tap for a vote in the Senate later this week, but some local food advocates worry it could unfairly impact small farmers. The goal of the bill is to improve regulatory oversight of food production in order to prevent things like the recent salmonella egg and spinach outbreaks. Critics argue that the bill takes a one-size-fits-all approach and would burden small farms with new regulatons that are needed to address problems caused by big agribusiness companies.
Below is a summary of the manager’s amendment that will become the base text of the bill if a filibuster of beginning debate is defeated in the Senate this week, as it is expected to:
Hazard analysis and preventive controls: Requires facilities that manufacture, process, pack or hold food to have in place risk-based preventive control plans to address identified hazards and prevent adulteration, and gives FDA access to these plans and relevant documentation. These requirements do not apply to restaurants or most farms.
Imports: Requires importers to verify the safety of foreign suppliers and imported food. Allows FDA to require certification for high-risk foods, and to deny entry to a food that lacks certification or that is from a foreign facility that has refused U.S. inspectors. Creates a voluntary qualified importer program in which importers with a certification of safety for their foreign supplier can pay a user-free for expedited entry into the U.S.
Inspection: Gives FDA additional resources to hire new inspectors and requires FDA to inspect food facilities more frequently.
Mandatory Recall Authority: Gives FDA the authority to order a mandatory recall of a food product if the food will cause serious adverse health consequences or death and a company has failed to voluntarily recall the product upon FDA’s request.
Regulatory Balance: Achieves new requirements without being excessively burdensome. The legislation provides training for facilities to come into compliance with new safety requirements and includes special accommodations for small businesses and farms. It does not interfere with current organic farming practices and does not change the current definition of farm under the 2002 Bioterrorism Act. Any farm that is not currently required to register with FDA will not be required to do so under this legislation.
Surveillance: Enhances surveillance systems to detect food-borne illnesses.
Traceback: Requires FDA to establish a pilot project to test and evaluate new methods for rapidly tracking foods in the event of a food-borne illness outbreak.
Increased FDA Resources: Increases funding for FDA’s food safety activities through increased appropriations and targeted fees for food facility reinspection, food recalls, and the voluntary qualified importer program.
The manager’s amendment is basically the bill as marked up and passed unanimously by the Senate Health, Education, Labor and Pensions (HELP) Committee last December, plus a number of new provisions designed specifically to protect small farms. The National Sustainable Agriculture Coalition explains these new provisions:
- The amendment sponsored by Senator Bernie Sanders (I-VT) pertaining to farms that engage in value-added processing or that co-mingle product from several farms. It will provide the Food and Drug Administration (FDA) with the authority to either exempt farms engaged in low or no risk processing or co-mingling activities from new regulatory requirements or to modify particular regulatory requirements for such farming operations. Included within the purview of the amendment are exemptions or flexibilities with respect to requirements within S. 510 for food safety preventative control plans and FDA on-farm inspections.
- The amendments sponsored by Senator Michael Bennet (D-CO) to reduce unnecessary paperwork and excess regulation. The Bennet language pertains to both the preventative control plan and the produce standards sections of the bill. FDA is instructed to provide flexibility for small processors including on-farm processing, to minimize the burden of compliance with regulations, and to minimize the number of different standards that apply to separate foods. FDA will also be prohibited from requiring farms and other food facilities to hire consultants to write food safety plans or to identify, implement, certify or audit those plans. With respect to produce standards, FDA will also be given the discretion to develop rules for categories of foods or for mixtures of foods rather than necessarily needing to have a separate rule for each specific commodity or to regulate specific crops if the real food safety issue involved mixtures only.
- The amendment sponsored by Senator Debbie Stabenow (D-MI) to provide for a USDA-delivered competitive grants program for food safety training for farmers, small processors and wholesalers. The training projects will prioritize small and mid-scale farms, beginning and socially disadvantaged farmers, and small food processors and wholesalers. The program will be administered by USDA’s National Institute for Food and Agriculture. As is the case for all of the provisions in S. 510, funding for the bill and for this competitive grants program will happen through the annual agriculture appropriations bill process.
- The effort championed by Senator Barbara Boxer (D-CA) to strip the bill of wildlife-threatening enforcement against “animal encroachment” of farms is also in the manager’s package. It will require FDA to apply sound science to any requirements that might impact wildlife and wildlife habitat on farms.
- An amendment proposed by Senator Sherrod Brown (D-OH) to amend the traceability and recordkeeping section of the bill that will exempt food that is direct marketed from farmers to consumers or to grocery stores and exempt food that has labeling that preserves the identity of the farm that produced the food. The amendment also prevents FDA from requiring any farm from needing to keep records beyond the first point of sale when the product leaves the farm, except in the case of farms that co-mingle product from multiple farms, in which case they must also keep records one step back as well as one step forward.
The full text of the amendment can be read here (PDF).
Many local food advocates are still withholding their support for the bill pending a floor vote on an amendment from Sen. Jon Tester [D, MT] and Sen. Kay Hagan [D, NC]. Ellen Sabina at the Justmeans Sustainable Food blog explains what that amendment would do:
Rather than have to fit the corporate scale mold, small farms will have less costly and more appropriate alternative way to meet the requirements for Hazards Analysis and Critical Control Plan. This particularly applies to farmers who sell 50% or more of their product directly to local (defined as within a 400 mile radius) consumers, restaurants, and stores and have a gross annual income of less than $500,000. The Tester-Hagen amendment would also clarify the existing law that small farms that direct market most of their products don’t need to register with the FDA. They do however need to go through all of the proper state food safety regualtion licensing processes and provide some labeling. Labeling and traceability is especially important in the effort for food safety, and small farms need to ensure that product information is complete (although small farm product standards should differ from the industrial food standards) and accessible.
When the bill went through committee, HELP Chairman Sen. Tom Harkin [D, IA] said that he had 90 votes to pass the bill without any of the new manager’s amendment provisions or the Tester-Hagan amendment. Since then, the bill has been targeted more aggressively by libertarian groups and some of that support has definitely peeled away. But the fact that Harkin did not include Tester-Hagan in the manager’s amendment is a sign that he still thinks he has the votes to pass this without it.