Congress Scrambles to Pass Food Safety Legislation

Sept. 7, 2010
As Congress has argued over health care reform, financial reform, two wars, a mortgage crisis and unemployment, amending the U.S. food safety system was put on the back burner. In Part 1 of our series on food safety in the food processing industry, we investigate the legislative issues behind food safety.

You could say our Senate is comprised of many members who have egg on their faces. In one of the great ironies in the history of food safety, the salmonella outbreak and recall of 550 million eggs (and still counting) occurred just as newly adopted and more stringent egg safety rules were enacted.

The new rules languished through 20 years of turf battles between the USDA (responsible for live chickens and breaker plants/egg products processing facilities where eggs are broken and pasteurized) and FDA (responsible for shell eggs and egg products once they leave the breaking facility). Last month, the Obama administration enacted the new requirements on major egg producers with a goal of cutting egg-related salmonella cases by 60 percent. Requirements include salmonella testing of hens and eggs, better sanitation in henhouses and improved refrigeration.

But the rules require passage of an amendment to update the broader food safety system by giving greater authority to regulators to police food manufacturers. Therein lies the rub.

As Congress argued over health care reform, financial reform, two wars, a mortgage crisis and unemployment, amending the antiquated U.S. food safety system (untouched for decades) was put on the back burner.

USDA is charged with overseeing the safety of meat, poultry and egg products. The FDA polices seafood, dairy products, fruits and vegetables and most food & beverage processing plants -- about 80 percent of the nation's food supply, with a smaller budget and fewer employees. In fact, FDA watches over 150,000 food facilities, more than one million restaurants and other retail food establishments, more than two million farms, as well as millions of tons of imported goods. State and local agencies share in conducting food plant inspections, surveillance and investigations of outbreaks.

But change is coming. One of these days.

Back in July 2009, the House passed H.R. 2749, the Food Safety Enhancement Act of 2009, by a vote of 283-142, and quick Senate passage was expected. The Senate's version -- S. 519: FDA Food Safety Modernization Act – made it through committee with a unanimous 16-0 vote recommending Senate passage.

"The bill addresses longstanding challenges in the food safety and defense system by promoting a prevention-oriented approach to the safety of our food supply and provides the federal government with the appropriate tools to accomplish its core food safety goals," said President Obama.

It was placed on the calendar in December 2009 but, despite bipartisan support, has been stalled in the Senate since that time (as of this writing). Hold-ups include Sen. Dianne Feinstein's (D-Calif.) desire to ban the chemical bisphenol-A (BPA) from food & beverage containers and Sen. Jon Tester's (D-Mont.) attempt to exempt small farmers from some of the new regulations.

Despite being in the other chamber, Rep. John Dingell (D-Mich.), who authored the House bill, sent a sharply worded letter to Feinstein in July. "This is the most awesomely frustrating thing I've ever undergone," Dingell said. "Seventy-six million people are sickened by bad food in this country every year, 300,000 go to the hospital and 5,000 die. And the Senate sits on this bill like a hen on an egg."

Bad choice of words.

Sparked by the egg recall and other recent problems, the Senate Health Committee just last month finally unveiled its changes, granting the FDA authority to recall tainted food, quarantine geographic areas and access food producers' records. Even if this passes, the House and Senate versions will have to be reconciled, and President Obama will have to sign it into law.

"This (salmonella) outbreak is just further proof of how quickly a foodborne illness can multiply across states, sickening Americans and causing widespread distrust over the safety of our food system," said Senate Health Committee Chairman Tom Harkin (D-Iowa). "And it adds to the urgency that, for far too long, has told the story of why comprehensive food safety legislation is needed. Our 100-year-old plus food safety structure needs to be modernized."

He echoes the American public's belief in the inability of our Congress to make certain the food supply is safe. But the good news is that the egg recall may be the tipping point for passage of S. 510 in the Senate in September when Congress returns from its August recess.

Despite Harkin's statistics (above) the FDA inspects less than a quarter of all food facilities each year, and half of all facilities have gone five years or more without an FDA inspection.

A whopping 80 percent of respondents to a poll of 1,007 Americans, conducted by Yonkers, N.Y.-based Consumers Union, the non-profit publisher of Consumer Reports, want Congress to immediately give the FDA the power to recall food when it poses a danger to health and safety. Most people are shocked to learn the agency does not already have that authority.

However, "Mandatory recall authority is unlikely to increase food safety, at least for domestic production, as most companies voluntarily recall products now without undue pressure from FDA, and often before FDA even knows about the problem," notes Leslie Krasny, a partner in law firm Keller & Heckman and a member of our Editorial Advisory Board. "In the event of an uncooperative company, FDA's ability to issue alerts ensures that retailers will remove adulterated product from commerce immediately and that the public will be informed, through mass communications, not to consume particular products."

Highlights of the (new) Senate bill
After months of disagreements and negotiations on the Food Safety Modernization Act and FDA overhaul in the Senate, the bi-partisan Health, Education, Labor and Pensions (HELP) Committee on Aug. 13 modified the Senate version of the food safety bill – S. 510 -- and drafted the 148-page "Manager's Package," which will be adopted if and when the bill comes to the Senate floor (expected after the summer recess).

The Manager's Package will cost more than $1.4 billion over the next five years, according to the Congressional Budget Office -- a tough sell in this economy and with upcoming midterm elections. The gross spending for the FDA to administer the new regulatory activities authorized under the legislation — about $1.3 billion over the 2011-2015 period — would be partially covered by fees assessed on registered food facilities, importers and exporters.

In 2010, the FDA received about $780 million in funding for the Center for Food Safety and Applied Nutrition and related activities. Under S. 510, funding for those activities would grow over time, with an increase of approximately $583 million (excluding fees) by 2015.

This compromise version:

  • Gives FDA recall authority 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.
  • Sets mandatory inspection rates for food production facilities (currently, FDA-regulated facilities can go a decade or more without inspection).
  • Gives FDA additional resources to hire new inspectors.
  • Gives government inspectors new powers to suspend or shut down plants with poor safety records.
  • Enhances FDA authority to access records.
  • Enhances FDA authority to administratively detain food.
  • Strengthens other federal agencies and programs meant to identify and track food-borne illnesses.

Highlights of House bill (H.R. 2749)

  • FDA will have the authority to order recalls.
  • FDA will have explicit authority to inspect high-risk food processing facilities every 6-12 months, low-risk facilities at a minimum of every 18 months to three years, and storage warehouses every five years.
  • Food processing facilities will be required to meet strong performance standards to ensure they are qualified to handle food.
  • An enhanced trace-back system will allow the FDA to more quickly determine the source of contamination in case an outbreak does occur. 
  • Foreign foods will be more closely inspected to ensure that they meet all U.S. safety standards. 
  • Contains a flat $500 facility registration fee, regardless of size or income, to help pay for the bill.

The Congressional Budget Office said the House-approved bill's requirement for more frequent inspections and other enforcement steps would cost an estimated $3.7 billion over five years, partly paid for by the $500 annual fee on food processing facilities.

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