Latest News on Food Safety Legislation

From the National Sustainable Agriculture Coalition (NSAC) Senate Food Safety Legislation Information Alert August 13, 2010 The Food Safety Modernization Act (S 510) was reported out of the Senate Health Education Labor and Pensions Committee in November of last year. The bill as reported out of committee would ramp up FDA regulation on farms that even minimally process their crops and sell them to restaurants, food coops, groceries, schools and wholesalers. Yesterday, the Senate Health, Education, Labor and Pensions (HELP) Committee released a copy of the "manager's amendment" to the FDA Food Safety Modernization Act (S. 510). These amendments have the support of HELP Chairman Tom Harkin (D-IA) and Ranking Member Mike Enzi (R-WY) as well as the four lead sponsors of the underlying bill, Dick Durbin (D-IL), Judd Gregg (R-NH), Chris Dodd (D-CT), and Richard Burr (R-NC) and will be adopted if and when the bill comes to the Senate floor in September when Congress returns from its summer recess. The full manager's package is available here.

In releasing the new version of the bill, Senator Harkin said, “For far too long, the headlines have told the story of why this measure is so urgently needed: foodborne illness outbreaks, product recalls and Americans sickened over the food they eat. This 100-year-old plus food safety structure needed to be modernized.”

Most sustainable agriculture and family farm groups think the Senate bill with the manager’s amendment is a very significant improvement over the companion bill passed by the House of Representatives (HR 2749) last year. NSAC has been able to help make substantial improvements in the Senate bill through the HELP markup and in changes that will be adopted as part of the manager’s amendment when the bill comes to the Senate floor. If the Tester amendment (see below) can be worked out and agreed to before Senate floor action, we will be able to support the Senate bill. However, we strongly oppose the companion House measure, and stand ready to defend the Senate bill in conference with the House should that prove necessary.

The Managers package includes the following important improvements to the bill as reported out of committee last year:

* 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 expensive 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.

Not in the package but still under serious negotiation for inclusion in the bill when it reaches the floor of the Senate is an amendment by Senator John Tester (D-MT) to exempt food facilities with under a certain annual gross sales threshold from preventative control plan requirements and to exempt farmers who primarily direct market product to consumers, stores or restaurants from the bill’s produce standards regulations. Our expectation is this amendment will be successfully negotiated over the coming weeks and will be accepted as part of the final bill once the bill reaches the Senate floor.

We also continue to note and emphasize the additional provisions NSAC helped secure when the bill was marked up in Committee last year. Those changes included:

* requiring FDA and USDA coordination (including with respect to organic farming);

* limiting recordkeeping for farmers to just the initial sale to the first purchaser of the crop; and

* language in the produce section directing FDA to create rules that are appropriate to the scale and diversity of the farm, that take into consideration conservation and environmental standards established by other federal agencies, that do not conflict with organic certification standards, and that prioritize high risk crops.

Still pending is an amendment from Senator Feinstein (D-CA) banning the use of Bisphenol A (BPA) in all food and beverage containers. The Grocery Manufacturers Association and other industry groups have come out strongly against the measure. Negotiations are ongoing to work out compromise language, but it is unclear to us what the status is of those talks.

4 Comments on Latest News on Food Safety Legislation

  1. The Tester amendment would exempt facilities that have adjusted-gross incomes of under $500,000. The latest version of this bill contains numerous exceptions and provisions for “small entities”. The DHH would define “small entities based on income, harvestable acres, the number of employees, and the volume of products.

    By completely exempting facilities with an AGI <$500,000, the Tester amendment would apply to many facilities that should not be considered small, beginning, or low-risk in terms of food safety.

    Indeed, $500,000 is twice the threshold for a USDA definition of a small farm. In order to generate that much in sales, a very large number of consumers is needed. Additionally, with the provisions that will be afforded to small entities, this bill as is would not unduly burden those to which it applied.

    In the interest of the integrity of small farms and facilities, discussion and definition of those that will be exempt should take place after the passage of this bill, during the prescribed public comment period.

    • Excellent points Mike, thank you!

      At this point I don’t think we actually know what the Tester Amendment will look like, or if/when it will be passed. Nor do we know what the final numbers will be. But in it’s latest incarnation, it looks like there is a possibility it may only apply to farms, not to manufacturers or processors, and will probably be based on total adjusted gross sales, not acreage, employees or volume. But this seems to change almost daily, and continues to be debated. doesn’t have a specific political position on the content of Tester except that we do think it is extremely important that small, beginning, low-risk farms be exempt.

      From what I am hearing, it is likely that Tester will be debated on the floor prior to passage by the full Senate, which is obviously not your preference.

      Let me throw this back at you in asking this: if you could define Tester yourself, what would it look like?

      Thanks again for your comment and your input,
      Taylor Reid

  2. Thanks for the response, Taylor.

    I think we agree that America needs more people to feel like they can begin farmer. Agriculture is an essential part of the fabric of our society and the utmost importance should be given for those who take on the task of rural America.

    In no way should the new food safety protocols inhibit the development of farms or agricultural producers. However, with foodborne illnesses to blame for thousands of deaths and millions of illnesses each year, it is time to step up to the plate.

    The bill as of yesterday contained directions to the Secretary to determine the definition of small entities and to determine risk levels for various products. I do not think the Tester amendment is necessary, nor prudent. Instead, I believe that the bill provides adequate time after its passage to hammer things out if you will, and this should be done without the kind of blanket exemption I’ve seen in the Tester amendment.

    In the end, I’d like to see a tiered program. By that I mean that certain economic levels and/or volumes of units sold each would have a different fee schedule. Obviously, the largest entities would pay the most in fees and inspection costs. The very small entities could be enrolled with no fees, with the costs being offset by those with more capital.

    I think that HACCP plans should be written and on-file for all but the very small facilities or small facilities that deal with products deemed low-risk.

    The NOP has a system of sliding-scale fees and cost-sharing that I think can serve as a rough model. Admittedly, I could learn more about it, but it gives a rough idea.

    I maintain though, that as the public owes a debt of gratitude to the farmer, so does the farmer owe a careful consideration to the public. I believe that safe food can and must be provided in a way that does not discourage or hamper the development of small entities.

    I appreciate the response. I hope I made sense. It’s late and I’m just trying to help.

    • Thanks again Mike. I am grateful to you for being more specific in your comments, which indeed made sense.

      Personally I agree that the problem of foodborne illness is sufficiently significant to warrant legislative action, and that farmers must bear their share of the burden in responding to it. The question is really what that share should be, to whom it should apply, at what level. My own concern with the legislation is precisely what you have stated: that it should not ‘inhibit the development of farms or agricultural producers’. And I applaud your recognition that a balance needs to be struck here. Too many people seem to be responding to this issue from polar extremes (which, incidentally, I see as part of a larger and rather disturbing social trend).

      I do believe that though there’s no such thing as ‘no risk’, small farmers delivering fresh, seasonal food to their local communities pose a much lower risk than large farmers whose products are harvested by more hands, processed and packaged in large facilities (often in mixed batches which makes traceability difficult and pathogen spread more likely), transported over long distances, and consumed long after harvest. And that the resources required to easily implement regulations and absorb their costs tend to be closely related to size. But It doesn’t sound like we disagree on this point either.

      Regarding Tester I think the fear, legitimate or not, is that if the Bill doesn’t contain a specific provision protecting (exempting) small, beginning, low-risk farmers (and possibly other entities) from the various burdens associated with food safety legislation, the political power of the larger players could make it difficult for them to get a fair shake in the process of ‘hammering things out’. I’m neither defending nor rejecting this notion, simply pointing it out.

      I also think it’s important to note that even if the Bill passes in it’s current form (with or without Tester), money will still need to be appropriated for programs such as those contained in Sen. Stabenow’s training amendment, which isn’t necessarily a sure thing in the current budget climate. And the process of reconciling whatever comes out of the Senate with the current House Bill (which is significantly different) remains a wild card as well. I am curious what you think of the House Bill, just in the interest of furthering this rather interesting discussion.

      Your idea of a tiered system rather than a blanket exception is intriguing. I imagine there would be a whole lot of wrangling about where and how steep the cutoffs should be – a process which is bound to be contentious, perhaps even to the point of further delaying the implementation of a Bill we seem to agree is needed. But I guess that’s how the political process works.

      And though I like the idea of an organic-style sliding-scale/cost-sharing type of system, I don’t think it would be feasible in this case for two reasons. First, Sliding-scales, if I understand what you are describing correctly, are implemented by the NOP accredited third party organic certification organizations, not by the agency itself. And second, State agencies already have difficulty dealing with the implementation of the cost-share program for the relatively small (compared to farming as a whole) organic farming industry. Here in Michigan, for instance, implementation of the cost-share program has been taken over by a non-profit organization because our Department of Agriculture has been cut so deeply that it simply doesn’t have the resources to handle implementing even this relatively small program.

      In any case, thanks again for your comments, and for delivering them in a thoughtful, rational, and courteous way.

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