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?

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):


‘(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:



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?