Food Safety Enhancement Act (HR 2749) Advances Out of Committee

Jun 18, 2009 | By: John Serrao

Featured, Food

UPDATE at bottom (jump there now)

Wednesday June 10th marked a historic day in food safety as the Food Safety Enhancement Act (HR 2749) moved out of subcommittee for a vote in the US House in the coming weeks. Here we review the bill and talk about what you can expect in the weeks to come.

HR 2749 is patching up the archaic Federal Food, Drug, and Cosmetic Act from the 1930s, the last time food safety legislation was significantly updated (believe it or not). This legislation set up the fractured structure we have today – that has given us countless recalls of late. The genesis of for a new bill was the peanut butter recall earlier this year but, in reality, this legislation has been coming for a long, long time.

Poised for a comeback?

Poised for a comeback?

Interestingly, the usual detractors to food safety legislation have had a huge break in their ranks because of the peanut butter scare. While large meat producers like Tyson and Smithfield are dumping their usual lobbying efforts against HR 2749, the processed food industry is now endorsing this legislation – overwhelming the meat industry’s efforts. There is no sea change in ethics going on here; the estimated $1 billion lost by industry (and $200 million alone by the Peanut Corporation of America) is the real reason. It seems poisoning your customers is bad business.

Are Small Farms Protected?

The legislation is doing a bunch of things for food safety, most notably giving the FDA mandatory recall authority. This has been a major sticking point for previous iterations of this legislation in the House, because House reps more than senators represent small fiefdoms inside large rural states. These districts worry recalls will disproportionately harm smaller businesses and processors versus their larger partners. In a sense, FDA recalls and fees would represent a regressive tax.

This is an extremely valid concern given the FDA’s proclivity for influence from industry. However, this bill was able to climb out of committee in the House because it properly addressed small growers and farmers markets. Specifically, Section 107 of the bill which stipulates ‘Traceability Requirements’ on most farms makes an exemption for farmer’s markets (more or less):

‘(4) EXEMPTIONS-

‘(A) DIRECT SALES BY FARMS- Food is exempt from the requirements of this subsection if such food is–

‘(i) produced on a farm; and

‘(ii) sold by the owner, operator, or agent in charge of such farm directly to a consumer or restaurant.

Traceability is a huge issue and this bill seeks to establish a new electronic system for tracking that will be vetted over the course of a couple years.  The exemption for small farmers is good but poorly defined.  We hope this vague language about exemptions gets tightened up as the bill moves forward. It would be a pity to see this single exemption allow major agribusiness farmers off the hook.

Watch some of the debate in congress over this very issue:

Quarantine Authority, however, is maintained for all farms, restaurants, convenience stores and grocery stores – and this ability is really what gives this legislation its teeth. The FDA has been tied in knots over what it can do once it finds problems in the system; this legislation overcomes that problem and would be a major boon to the FDA’s policing powers, for better or worse. This part of the legislation will surely evolve when the bill comes up for a full vote in the weeks to come, so stay tuned if you are interested in the finer points.

What does this cost?

This new legislation is original in that it imposes it costs on the very people it is inspecting, a controversial move. This allows the legislation to scale up with the growth of industry, which has been a huge problem for the current FDA. In 1972, the FDA conducted 50,000 food safety inspections; in 2006, the FDA conducted 9,164. Obviously, more coverage is required but again, the worry is how this new provision will impact the booming small, sustainable agriculture field.

The major concession made yesterday that helped get this legislation out of committee was by paying attention to smaller establishments. They reduced the yearly fee paid to the FDA by 50% from $1000 to $500, a fee they argue should be affordable for all and one that does not cover all of the FDA’s costs. Our worry is that if this fee does not cover the FDA’s new actions, it will gradually go up over time. It would seem smarter to price in what it costs to make this legislation happen rather than begging for funds later.

We will cover this bill more as it progresses but as it stands now, it is a huge improvement over the system we currently have from the 1930s.

Watch the opening remarks on the legislation here:

UPDATE:

As of June 17th, the HR2749 has officially been voted out of committee for a vote in the US House in the coming months.

The Maine Organic Farmers and Gardeners Association (MOFGA) has some interesting things to say about the legislation. They were working directly with the congress to address the concerns of small farmers – and they appear to have done a great job. All 12 of their most immediate concerns were addressed. Some of the major ones were:

  • exemptions for traceback systems for direct market sellers
  • criteria for produce safety standards that include their impact on family farms and organic farms
  • ways to incorporate other standards (e.g. fair trade) into import standards through accreditation

The full list can be read here:

The Ethicurean also had some good words on the subject. Here is a list of what they gleaned from the legislation:

  • high-risk food processors HAVE to be inspected 1-2X per year
  • fees are expected to give the FDA about $200 million to conduct new inspections
  • the FDA get rulemaking authority for the ‘safe growing and harvesting of produce’

In addition, there is a $175,000 cap on total fees for any one operation, which may be revised upwards, considering the size of some individual operations now in existence. The exact slide of the sliding-fee scale is yet to be determined.

Both Ethicurean and MOFGA note that the legislation does not yet fully comprehend the role farmers have in processing small food stuffs and how that interacts with the larger food system. No line has been drawn as to what size a farm is before it becomes a potential widespread health hazard – so they ask for more guidance there.

Overall, this legislation seems to be shaping up quite nicely for all parties involved. But much time remains and it still has to go to a vote in both the House and Senate. At least, both Republicans and Democrats were complimenting each other on how they worked together. Did hell just freeze over?

  • jeanruss

    This is the twin bill to HR 875 that was intended to destroy organic farming. Monsanto and their ilk will continue to try to buy off Congress. This issue is non-negotiable. We cannot allow the government to control our food. Factory farms are where these hideous outbreaks occur because they pervert nature. We defeated HR 875 and we will continue to fight this oppression from the Fascist corporations in America.

  • jeanruss

    This is the twin bill to HR 875 that was intended to destroy organic farming. Monsanto and their ilk will continue to try to buy off Congress. This issue is non-negotiable. We cannot allow the government to control our food. Factory farms are where these hideous outbreaks occur because they pervert nature. We defeated HR 875 and we will continue to fight this oppression from the Fascist corporations in America.

  • Curiosity

    I am shocked that someone or something (whatever this it) promotes nutrition and healthy eating, food safety, etc… and supports the worst bill ever introduced into the house regarding food safety.

    You really need to check your facts on this one. You should be fighting it and certainly not promoting it. Shocking. Ignorance is the only reason that comes to mind.

    This bill will kill most small food processors and small family farms across the US. Literally!

    I am BOTH. Shame on you and do a little more research. Direct mail me if you help. FIGHT THIS BILL if you wish to keep the food supply out of the hands of the BIG few and into the hands of the multiple small.

    • http://www.nutritionwonderland.com John Serrao

      Curiosity-

      Hopefully your name would guide you to the text of the actual bill (which was linked to in the original article):
      http://www.opencongress.org/bill/111-h2749/text

      You should read over it – there are TONS of provisions for small farmers included in this bill. Small farmers like yourself may not even be subject to any inspections. The FDA is MANDATED by the bill to set up guidelines where small producers can avoid be declared as ‘food facilities’. ONLY food facilities large enough to pose a serious, systemic type risk will be inspected.

      Many of those small facilities will only be reviewed once every 4-5 years – a period that can be lengthened if you can prove you don’t pose a risk. If you are on the smaller end of this scale, you are only charged $500/yr (and I believe its only the year you are inspected in). These are extremely lenient terms.

      So, if you are as small as you say, you will likely never be inspected. I can think of no more efficacious way to do this, can you?

      And we are plenty aware of the problems at the FDA and have grave reservations about their expansion of power – but ultimately someone will be in charge of food safety, so similar charges could be leveled at any arm of the government in charge of this task. Remember – this bill still does not update the USDA FSIS food safety rules at all (the USDA is in charge of the entire meat, beef, poultry, pork scene) – so if anything HR 2479 is far too weak in our opinion.

      If you are interested in outlining what a better provisions for small farmers a food safety bill should include versus HR 2749, we would be more than happy to run your story and give your small farm some publicity in the process.

  • Curiosity

    I am shocked that someone or something (whatever this it) promotes nutrition and healthy eating, food safety, etc… and supports the worst bill ever introduced into the house regarding food safety.

    You really need to check your facts on this one. You should be fighting it and certainly not promoting it. Shocking. Ignorance is the only reason that comes to mind.

    This bill will kill most small food processors and small family farms across the US. Literally!

    I am BOTH. Shame on you and do a little more research. Direct mail me if you help. FIGHT THIS BILL if you wish to keep the food supply out of the hands of the BIG few and into the hands of the multiple small.

    • http://www.nutritionwonderland.com John Serrao

      Curiosity-

      Hopefully your name would guide you to the text of the actual bill (which was linked to in the original article):
      http://www.opencongress.org/bill/111-h2749/text

      You should read over it – there are TONS of provisions for small farmers included in this bill. Small farmers like yourself may not even be subject to any inspections. The FDA is MANDATED by the bill to set up guidelines where small producers can avoid be declared as ‘food facilities’. ONLY food facilities large enough to pose a serious, systemic type risk will be inspected.

      Many of those small facilities will only be reviewed once every 4-5 years – a period that can be lengthened if you can prove you don’t pose a risk. If you are on the smaller end of this scale, you are only charged $500/yr (and I believe its only the year you are inspected in). These are extremely lenient terms.

      So, if you are as small as you say, you will likely never be inspected. I can think of no more efficacious way to do this, can you?

      And we are plenty aware of the problems at the FDA and have grave reservations about their expansion of power – but ultimately someone will be in charge of food safety, so similar charges could be leveled at any arm of the government in charge of this task. Remember – this bill still does not update the USDA FSIS food safety rules at all (the USDA is in charge of the entire meat, beef, poultry, pork scene) – so if anything HR 2479 is far too weak in our opinion.

      If you are interested in outlining what a better provisions for small farmers a food safety bill should include versus HR 2749, we would be more than happy to run your story and give your small farm some publicity in the process.

  • Ace

    What a spin this John Serro character put on this one. This bill would allow the shutdown of farm markets when they aren’t even involved in a contamination.

    It would also give the FDA power to quarantine an area and restrict movement of ANY vehicle that has been used to transport or hold the food in question – EVEN IF THERE IS NO FOOD CURRENTLY IN THE VEHICLE

    HORRIBLE LEGISLATION

    • http://www.nutritionwonderland.com John Serrao

      Ace, you are talking about giving the FDA to have the ability to shut down a regional area based on a widespread contamination. To understand what Ace is talking about, you need to think of the multinational corporate aspect of food production, which HR 2749 is targeting.

      For example, in the latest Nestle outbreak, the FDA would have been able to immediately seize all cookie dough products and stop any vehicle transporting the products in any of the effected states. That really doesnt sound like a terrible idea to me.

      The idea that the FDA is going to swarm into a regional area and shut down the entire farmers marker circuit based on one outbreak is simply not true. If you read the bill, ALL direct sales by farmers to consumers ARE EXEMPT from the bill. Most small farmers who produce food would face new rules as our guest columnist alluded to recently but it all depends on what you are selling. Considering the Nestle outbreak hit something like 30 states, in Ace’s universe the FDA would have to shut down something on the order of 2500 farmers markets. The logistics of this alone should assuage your fears.

      Farmers markets are not the outlets for multinational corporations and their outbreaks. Derailing this legislation ensures a repeat of the deadly outbreaks we have seen this year. Be careful what you wish for Ace.

  • Ace

    What a spin this John Serro character put on this one. This bill would allow the shutdown of farm markets when they aren’t even involved in a contamination.

    It would also give the FDA power to quarantine an area and restrict movement of ANY vehicle that has been used to transport or hold the food in question – EVEN IF THERE IS NO FOOD CURRENTLY IN THE VEHICLE

    HORRIBLE LEGISLATION

    • http://www.nutritionwonderland.com John Serrao

      Ace, you are talking about giving the FDA to have the ability to shut down a regional area based on a widespread contamination. To understand what Ace is talking about, you need to think of the multinational corporate aspect of food production, which HR 2749 is targeting.

      For example, in the latest Nestle outbreak, the FDA would have been able to immediately seize all cookie dough products and stop any vehicle transporting the products in any of the effected states. That really doesnt sound like a terrible idea to me.

      The idea that the FDA is going to swarm into a regional area and shut down the entire farmers marker circuit based on one outbreak is simply not true. If you read the bill, ALL direct sales by farmers to consumers ARE EXEMPT from the bill. Most small farmers who produce food would face new rules as our guest columnist alluded to recently but it all depends on what you are selling. Considering the Nestle outbreak hit something like 30 states, in Ace’s universe the FDA would have to shut down something on the order of 2500 farmers markets. The logistics of this alone should assuage your fears.

      Farmers markets are not the outlets for multinational corporations and their outbreaks. Derailing this legislation ensures a repeat of the deadly outbreaks we have seen this year. Be careful what you wish for Ace.

  • Ace

    “For example, in the latest Nestle outbreak, the FDA would have been able to immediately seize all cookie dough products and stop any vehicle transporting the products in any of the effected states. That really doesnt sound like a terrible idea to me.”

    The bill says: “prohibiting or restricting the movement of food or of any vehicle being used or that has been used to transport or hold such food within the geographic area.”

    it’s not just truckers who have cookie dough on board like you make it seem, although I’d be against that too, it extends to any vehicle that has ever been used to hold or transport a certain product. Meaning, in such a circumstance, even the average person who maybe brought home some nestle cookie dough a week prior (to use your example) could have the movement of said vehicle restricted.

    That is unprecedented authority handed over to the FDA and I would reflect your warning back on you, be careful what you wish for. An occasional salmonella or e.coli outbreak doesn’t really strike fear into my heart that I’m willing to hand sweeping powers over to the FDA. Especially when these “outbreaks” are quite small given the amount of people consuming them and they rarely kill anyone as in the case with the Nestle example which killed nobody, I would also point out the fact that these people were eating RAW cookie dough which is a risk even if it’s from a major manufacturer.

  • Ace

    “For example, in the latest Nestle outbreak, the FDA would have been able to immediately seize all cookie dough products and stop any vehicle transporting the products in any of the effected states. That really doesnt sound like a terrible idea to me.”

    The bill says: “prohibiting or restricting the movement of food or of any vehicle being used or that has been used to transport or hold such food within the geographic area.”

    it’s not just truckers who have cookie dough on board like you make it seem, although I’d be against that too, it extends to any vehicle that has ever been used to hold or transport a certain product. Meaning, in such a circumstance, even the average person who maybe brought home some nestle cookie dough a week prior (to use your example) could have the movement of said vehicle restricted.

    That is unprecedented authority handed over to the FDA and I would reflect your warning back on you, be careful what you wish for. An occasional salmonella or e.coli outbreak doesn’t really strike fear into my heart that I’m willing to hand sweeping powers over to the FDA. Especially when these “outbreaks” are quite small given the amount of people consuming them and they rarely kill anyone as in the case with the Nestle example which killed nobody, I would also point out the fact that these people were eating RAW cookie dough which is a risk even if it’s from a major manufacturer.

  • http://nonais.org esbee

    This bill is too much like NAIS and takes away too many freedoms for the sake of a little food safety. This bill micromanages places that grow just about anything, chraging a yearly fee of $500 to do so, and prohibits dogs and cats from roaming on farms…what farm does not have a dog or barn cat?
    more on NAIS—NAIS (National animal Identification System)
    is a business plan designed to benefit corporate ag, but the rest of us are dragged in to work and fund the program, while corporate ag gets a free ride. Under NAIS, you register your premises with the government, even if you own even one animal, such as a horse, llama, goat, chicken, cattle, pet pot belly pig, parakeet, etc. (This step clouds title to private property.) All critters must be microchipped and all births, deaths and movements reported into a database. This costs time and money. (Factory farms do NOT have to do this, they get one lot number per group of animals. Any animal in that group could be diseased and who would know.) But if animal disease is suspected in an area, the USDA can depopulate a 6 mile radius (140 sq. miles of dead healthy animals.
    Touted to be a disease tracking program, so foreign countries will feel safe about buying US raised meat, while the private citizen has to tag and track every critter, corporate ag gets a free ride by having one lot number per groups of animals and few reporting events.
    I am not in the same business as big ag, but because I own horses, I am forced against my will to be part of the business plan with none of the benefits nor profits but bearing all the costs and risks. Over 90% of the speakers at the USDA NAIS listening sessions on youtube are telling why they oppose NAIS.

  • http://nonais.org esbee

    This bill is too much like NAIS and takes away too many freedoms for the sake of a little food safety. This bill micromanages places that grow just about anything, chraging a yearly fee of $500 to do so, and prohibits dogs and cats from roaming on farms…what farm does not have a dog or barn cat?
    more on NAIS—NAIS (National animal Identification System)
    is a business plan designed to benefit corporate ag, but the rest of us are dragged in to work and fund the program, while corporate ag gets a free ride. Under NAIS, you register your premises with the government, even if you own even one animal, such as a horse, llama, goat, chicken, cattle, pet pot belly pig, parakeet, etc. (This step clouds title to private property.) All critters must be microchipped and all births, deaths and movements reported into a database. This costs time and money. (Factory farms do NOT have to do this, they get one lot number per group of animals. Any animal in that group could be diseased and who would know.) But if animal disease is suspected in an area, the USDA can depopulate a 6 mile radius (140 sq. miles of dead healthy animals.
    Touted to be a disease tracking program, so foreign countries will feel safe about buying US raised meat, while the private citizen has to tag and track every critter, corporate ag gets a free ride by having one lot number per groups of animals and few reporting events.
    I am not in the same business as big ag, but because I own horses, I am forced against my will to be part of the business plan with none of the benefits nor profits but bearing all the costs and risks. Over 90% of the speakers at the USDA NAIS listening sessions on youtube are telling why they oppose NAIS.

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