As I flew home Friday, I realized the irony of the shirt I was wearing. It said "Put a trial lawyer out of business. Pass food safety reform BEFORE Thanksgiving." Oops. Guess that didn’t happen. Then again, I don’t think that even the trial lawyer in question (Bill Marler) believed it would happen. The Senate simply cannot walk and pass health care at the same time. However, even though the Senate is entirely stalled right now, there are a lot of reasons why they see some urgency in passing a food safety bill. Reason #1: Linda Rivera, a 59 year old Nevada woman who spent months of this year in a hospital fighting for her life after eating E. coli-tainted Nestle cookie dough. As it happens, there’s a rather powerful Senator from Nevada who’s up for re-election in 2010.

As of now, the House passed a food safety bill (H.R. 2749 – The Food Safety Enhancement Act) and the Senate just passed a food safety bill out of committee (S. 510 – The Food Safety Modernization Act). The final Senate vote will be the next step towards badly needed food safety reform. Here’s what you need to know about food safety in America & about these bills specifically.

America’s Food Safety System
In short, America doesn’t really have a food safety system. Instead, we have a number of departments and agencies, each with various food safety regulatory responsibilities, leaving gaps large enough for E. coli and salmonella to wiggle through far too often. The two agencies most responsible for food safety in the U.S. are the USDA’s Food Safety and Inspection Service (FSIS) and the Dept of Health and Human Services’ Food and Drug Administration (FDA). FSIS takes care of meat and some eggs. The FDA takes care of everything else.

The bills going through Congress right now are not full food safety reforms that would give us a comprehensive food safety system. They wouldn’t even reform our entire existing food safety infrastructure. They would merely reform the FDA. It’s not enough, but it’s also not a bad thing. Many of the provisions in the bills are badly needed and long overdue reforms.

The reason the reforms only cover the FDA is purely political. The FDA falls under the jurisdiction of the relatively progressive Energy & Commerce committee in the House and the HELP (Health, Education, Labor, and Pensions) Committee in the Senate. In those committees, there is enough political will to make changes. Furthermore, a number of food manufacturers have come on board supporting certain food safety reforms. Following the peanut recall last winter, companies like Kellogg finally see some reforms as being in their financial interest.

The USDA and the meat industry (which it regulates) are an entirely different story. The House and Senate Ag Committees have jurisdiction over the USDA, and the meat industry could not have found a better fox to put in charge of the henhouse. Or factory chicken farm, as the case may be. This is unfortunate as many of the pathogens that wind up in our food supply originate on factory farms that produce meat. In some cases, the pathogens that contaminate FDA-regulated foods (like leafy greens) originate on factory farms or their manure lagoons. Any food safety reform that fails to address this is only a partial solution. Alas, a partial solution is the best we can get right now, and it’s certainly better than no solution at all.

The Problems the Bills Address
As mentioned before, the Senate bill is a different bill from the one passed by the House. The bills are similar, and ultimately they will come together in reconciliation. Here are a number of problems the bills address:

1. Mandatory Recall Authority

As it stands now, even when the FDA has solid proof that a specific food is tainted, it cannot mandate a recall. Recalls are all voluntary. In the case of a food safety outbreak, time is critical. For every extra day the company waits before recalling a food, more people are buying and eating that food. The bills will give the FDA mandatory recall authorty.

2. Frequency of Inspections

Currently, food manufacturing plants are inspected by the FDA about once a decade. The schedule of inspections may change in the final bill, but the House passed a bill requiring annual inspections for high risk food facilities, inspections every 18 mos-three years for low risk food facilities, and inspections every three-four years for warehouses. The Senate bill is slightly more lax but very similar. For the first 2 years following the enactment of the bill, high risk facilities must be inspected at least every 2 years. After that, high risk facilities must be inspected annually. All other facilities must be inspected at least every 4 years.

>>Controversy: The definition of a food facility is a little bit dicey. The definition excludes farms and restaurants. However, if a farm engages in processing, then it becomes a food facility. The major question is how literally the FDA will take this definition. If a farmer grows strawberries, makes jam with them, and sells the jam, does that make the farm a food facility? What if the farmer also uses some strawberries from the farm up the road? How about washed, bagged leafy greens? Does washing and bagging the lettuce constitute processing? The ultimate impact of the bill on farms depends on what the final bill says and how the FDA interprets it.

3. Inspection of Records
There are two times when viewing records would be very helpful to the FDA. First, during inspections, so that they can see how the plant operates over time and not just a snapshot of the day of the inspection. Second, during food safety outbreaks, so they can investigate what happened. I’m having a hard time interpreting the section of the U.S. code that governs this and understanding how the bills will change it, but the bills address records inspection, presumably making it easier for the FDA to get the information it needs via inspecting records.

4. Funding
A perennial problem of the FDA is money. It’s hardly an accident, as companies who do not like being inspected and regulated lobby Congress, which controls the budget of the FDA. There are two ways to raise funds for the FDA and it appears that under any bill that passes, both will be utilized. First, in order to pay for the increased inspection schedule, the FDA will need Congress to appropriate more money in the budget. This will have to be addressed in the budget, not in the food safety bill. Second, the House bill also assesses a $500 annual fee per food facility. The income from fees will not cover the full cost of increased inspections, but it will help. It does not appear to me that the Senate bill includes a similar provision.

>>Controversy: Many people criticize the regressive nature of a flat $500 fee, as Kraft Foods will have a much easier time paying compared to a Mom n Pop jam making operation. Initially, the House bill stipulated a $1000 fee but it was reduced to $500 (presumably due to complaints from Big Business, not due to the powerful Mom n Pop small business lobby). It remains to be seen whether fees will be included in the final bill, and whether or not there will be a sliding scale for small businesses.

To me, these are the most important provisions in the bills that will actually lead to increased food safety. The bills also include provisions about testing imported foods, record keeping by U.S. producers, traceability, and "Good Agricultural Practices." Many sustainable food advocates have been worried since the introduction of these bills that the final bill would be harmful to small or sustainable producers. It seems that the National Sustainable Agriculture Coalition has taken a lead in lobbying to get the needs of small and sustainable producers met, and they’ve made quite a bit of progress (although they still have some complaints about both the House and the Senate bills in their current forms). Here’s their latest update:

Senate HELP Approves Food Safety Act: On Wednesday, November 18, the Senate Health, Education, Labor, and Pensions (HELP) Committee unanimously approved a revised version of S. 510, the Food Safety Modernization Act. Senate floor action is considered likely early next calendar year, though no one is entirely ruling out floor action yet in December. The House has already passed its companion bill, so once the full Senate takes action the House and Senate will conference to work out the wide ranging differences between the two bills.

A bipartisan, modified version of S. 510 was presented to the Committee early last week by Chairman Harkin (D-IA) and Ranking Member Enzi (R-WY), after having been negotiated under the auspices of Senators Dodd (D-CT) and Gregg (R-NH). The newly revised version includes several key planks from the NSAC position paper and legislative proposal:

  • In the fruit and vegetable (produce) standards section of the bill, the new language requires coordination between FDA and USDA, rather than merely requiring FDA to consult with USDA. The coordination specifically includes the National Organic Program.

Also in the fresh produce section, FDA is instructed to create rules that:

  • are flexible and appropriate to the scale and diversity of the farm,
  • take into consideration conservation and environmental standards established federal conservation, wildlife, and environmental agencies,
  • not include requirements that conflict or duplicate organic standards,
  • prioritize for implementation rules for crops that have been associated with foodborne illness

In the traceability section, the bill was amended to restrict recordkeeping for produce farms (with the exception of produce farms that also have processing facilities) to information about the initial sale to the first purchaser of the crop.

Senators involved in obtaining one or more of these provisions included Harkin, Enzi, Bennet, Bingaman, Brown, Burr, Franken, Merkley, and Sanders.

Many other NSAC proposals were not included in the bill, including:

  • A narrowing of the definition of farm "facility" to exempt farms doing value-added processing of low-risk foods and targeting small and mid-sized farms with value-adding enterprises for a training-based food safety apparatus rather than industrial-style regulation.
  • A national training program for farms and small processors, previously introduced as a separate bill known as the Growing Safe Food Act…
  • Instructions to FDA to make new "good agricultural practice" guidance scale appropriate, pro diversification, and consistent with conservation and organic standards.
  • An instruction to FDA to do public notice and comment rulemaking on "animals of significant risk" with respect to pathogens of concern for food safety, rather than the bill’s current instruction that FDA rules should prevent "animal encroachment" with no reference to risk factors.
  • An exemption from traceability requirements for direct farmer to consumer, store, or restaurant sales or farm identity-preserved labeling sales.

Only four amendments were accepted during markup, all without debate. Two were by Senator Burr (R-NC), including one co-sponsored by Senator Bennet (D-CO) to require FDA to do several outreach sessions to farmers and small businesses on the new set of "good agricultural practices" to be developed by FDA. The other two were by Senator Murkowski (R-AK) on fishery guidance and a food transportation study, who also co-sponsored a Burr amendment on alcohol wholesalers.

Among the amendments introduced but withdrawn were amendments on comprehensive traceability (Sen. Brown), antibiotic resistance (Sen. Reed), country of origin labeling for processed fish (Sen. Murkowski), country of origin labeling for processed food (Sen. Brown, Merkley), infant formula health claims (Sen. Merkley), restitution payments for farmers harmed economically by FDA mistakes (Sen. Hagan), and confidentiality of records provided to FDA (Sen. Roberts). Some of these amendments may be revisited during floor consideration of the bill.

To follow the progress of the food safety bill and other sustainable ag issues, you can sign up for NSAC’s weekly updates and action alerts.