Food Safety Bill Hits A Snag

The Senate last week overwhelmingly passed the biggest overhaul of food safety regulations in 70 years, by a vote of 73-25. But a mistake in the legislation likely means that both the House and Senate will have to vote on it again.

The FDA Food Safety Modernization Act (S. 510) would give the Food & Drug Administration sweeping new authority to help prevent food-borne illness. It would provide FDA with the power to recall unsafe food and to require food producers to develop a risk-based plan to prevent contamination. The bill would also increase the frequency of FDA inspections of food-processing facilities and give FDA access to food manufacturers’ records and laboratory data.

Although the Senate version of the bill is not as strong as the bill passed by the House of Representatives in July 2009, “it is still the most significant improvement in FDA’s authority in the food area in the agency’s history,” says William K. Hubbard, a former senior associate commissioner of FDA.

A key difference between the two bills is that the House version would require food companies to pay an annual registration fee of $500 to help offset the cost of increased inspections. The Senate version does not include such registration fees.

The Senate bill, however, does include new fees for reinspections, mandatory recalls, and importer registrations. And that’s where the Senate made its mistake. According to the Constitution, all measures that involve revenue must originate in the House. Within hours of the Senate’s passage of the bill, the House Ways & Means Committee flagged the error.

The House has several options, one of which is to attach S. 510 to a House bill and bring it to the floor for a vote. It would then need to be voted on by the Senate. Although time is running out to get the bill passed before the lame-duck session ends, supporters predict it will be on the President’s desk this month.

House Democrats have some concerns about the final Senate bill, but they seem poised to vote in favor of it if the procedural error can be fixed. “While we think our bill was much better, we’re prepared to pass a bill along the lines that they passed,” House Majority Leader Steny Hoyer (D-Md.) told reporters on Dec. 1.

One sticking point is an amendment added late by Sen. Jon Tester (D-Mont.) exempting small food producers from the new rules. “Many groups, including those in our coalition, do not support the Tester amendment” because it does not grant exemptions on the basis of risk, says Sandra Eskin, director of the food safety campaign at the Pew Charitable Trusts. The amendment exempts food producers that have less than $500,000 in annual sales and sell their products within 275 miles of where they are produced. Nonetheless, Pew still supports the Senate bill because it is better than nothing, Eskin notes.

If the legislation does ultimately pass, the remaining question is whether Congress will provide FDA with funding to implement it. “This bill gives FDA much more authority when it goes in for an inspection, but it doesn’t provide money to actually do the inspection,” Hubbard notes. Getting additional money from Congress in the current economic climate will be challenging, he says.