Grassley, Harkin vote yes as Senate passes food safety bill (updated)

The U.S. Senate approved the FDA Food Safety Modernization Act today by a 73 to 25 vote. Tom Harkin and all other Senate Democrats voted for the bill, as did 15 Republicans including Iowa's Chuck Grassley. Grassley also was among 14 Republicans who joined Democrats to support the cloture motion ending debate on the food safety bill yesterday.

Some details on the bill as well as its complicated path through the Senate are after the jump.  

Michael Pollan and Eric Schlosser described some of the bill's good points:

The bill would, for the first time, give the F.D.A., which oversees 80 percent of the nation's food, the authority to test widely for dangerous pathogens and to recall contaminated food. The agency would finally have the resources and authority to prevent food safety problems, rather than respond only after people have become ill. The bill would also require more frequent inspections of large-scale, high-risk food-production plants.

Last summer, when thousands of people were infected with salmonella from filthy, vermin-infested henhouses in Iowa, Americans were outraged to learn that the F.D.A. had never conducted a food safety inspection at these huge operations that produce billions of eggs a year. The new rules might have kept those people - mainly small children and the elderly - from getting sick.

The law would also help to protect Americans from unsafe food produced overseas: for the first time, imported foods would be subject to the same standards as those made in the United States.  

The Senate's version of the FDA Food Safety Modernization Act isn't as strong as the bill the House of Representatives approved in July 2009. (By the way, all three Iowa Democrats in the House voted for that bill; so did 54 House Republicans, but Iowa's Tom Latham and Steve King voted no.) Gardiner Harris and William Neuman explained some of the differences in the New York Times:

Both versions of the bill would grant the F.D.A. new powers to recall tainted foods, increase inspections, demand accountability from food companies and oversee farming. But neither version would consolidate overlapping functions at the Department of Agriculture and nearly a dozen other federal agencies that oversee various aspects of food safety, making coordination among the agencies a continuing challenge.

While food-safety advocates and many industry groups preferred the House version because it includes more money for inspections and fewer exceptions from the rules it sets out, most said the Senate bill was far better than nothing. [...]

The legislation greatly increases the number of inspections the F.D.A. must conduct of food processing plants, with an emphasis on foods that are considered most high risk - although figuring out which ones are riskiest is an uncertain science. Until recently, peanut butter would not have made the list.

Whether the agency gets the money to conduct such inspections is far from certain. The House version would require food producers to pay a modest annual fee to help fund inspections, but that provision was excluded from the Senate version. The Senate bill also requires grocery stores to post prominently a list of recently recalled foods or alert consumers in other ways, a provision championed by Senator Kirsten Gillibrand, a Democrat from New York.

Neither version of the bill applies to slaughterhouses or most meat and poultry processing plants, which are under the jurisdiction of the agriculture department. Both versions would affect about 80 percent of the food supply, including fresh fruits and vegetables, eggs, dairy products and processed foods that do not contain meat.

Senate Democratic leaders had hoped to pass the food safety bill before the election, but Republican Tom Coburn of Oklahoma blocked it, citing concerns about its cost. He also tried to attach a three-year ban on all earmarks to the bill.

Meanwhile, consumer and sustainable agriculture groups expressed concerns that the bill would put too much of a burden on small local farmers and food processors. Senator Jon Tester of Montana, who happens to be an organic farmer, led efforts to work out language to protect those producers. The compromise was struck two weeks ago; Dave Murphy posted details on the Food Democracy Now blog. Excerpts:

• Food facilities would qualify for an exemption from the preventive control/HACCP provisions in section 103 of S. 510 under certain conditions:

(1) they are either a "very small business" as defined by FDA in rulemaking; or (2) the average annual monetary value of all food sold by the facility during the previous 3 year period was less than $500,000, but only so long as the majority of the food sold by that facility was sold directly to consumers, restaurants, or grocery stores (as opposed to 3rd party food brokers) and were in the same state where the facility sold the food or within 275 miles of the facility.

[...]

• Farms would qualify for an exemption from the produce safety standards in section 105 of S. 510 if, during the previous 3 year period, the average monetary value of the food they sold was less than $500,000, but only so long as the majority of sales were to consumers, restaurants, or grocery stores (as opposed to 3rd party food brokers) and were in the same state where the farm harvested or produced the food or within 275 miles of the farm.

Large produce industry groups fought the Tester amendment and, after it passed, came out against the whole food safety bill. Several other industrial agriculture groups supported the bill, however, as did the trade group that represents large food processors. Last year's large peanut butter recall and this year's egg recall affected sales across the industry, even for companies that were not implicated in the salmonella outbreaks.

Today's bipartisan vote in the Senate does not guarantee that a food safety bill will reach President Obama's desk. There probably is not time during the lame-duck session for a conference committee to resolve differences between the Senate and House bills, after which further votes in both chambers would be needed. House Democrats may decide to pass the Senate version to get the bill to the president before the new Congress takes office.

Any thoughts about food safety are welcome in this thread.

Post script: a chunk of time during yesterday's debate on the food safety bill was devoted to amendments seeking to repeal a provision of the health insurance reform law. The Affordable Care Act was funded in part by requiring businesses to file 1099 forms for expenses of at least $600 per vendor. That threatens to create an "avalanche of paperwork" for businesses beginning in 2012. (For instance, ordering a couple of pizzas for the office every weeks could add up to more than $600 over the course of a year, forcing a business owner to send the pizza parlor an IRS 1099 form.)

Democratic Senator Max Baucus and Republican Mike Johanns offered different versions of amendments that would repeal the 1099 requirement. At the Congress Matters blog, David Waldman explained the complicated Senate procedures that caused both the amendments to fail yesterday, even though Johanns' version received 61 yes votes. Waldman noted that Republicans opposed Baucus' amendment because it would have repealed a business tax without offsetting the lost revenue. Those same Republicans would never insist on offsets to cover the cost of making all the Bush tax cuts permanent.

UPDATE: Radio Iowa reports,

The F.D.A. says it has notified Wright County Egg of Galt that it can resume shipping eggs from two hen houses on one of its six farms.

Wright County Egg stopped shipping whole egs in August after the multi-state outbreak of salmonella poisoning. F.D.A. commissioner Margaret Hamburg said in a statement that after four months of "intensive work by the company, and oversight, testing and inspections by the F.D.A." the eggs are safe to ship.

Hamburg says the company removed contaminated hens and cleaned and sanitized their houses, and a biosecurity plan has been implemented to minimize the risk of contamination from other houses. The F.D.A. also says the severe rodent problem has been corrected and the feed mill was cleaned and disinfected to eliminate contaminated feed.

SECOND UPDATE: Uh oh. "House May Block Food Safety Bill Over Senate Error":

Section 107 of the bill includes a set of fees that are classified as revenue raisers, which are technically taxes under the Constitution. According to a House GOP leadership aide, that section has ruffled the feathers of Ways and Means Committee Democrats, who are expected to use the blue slip process to block completion of the bill.

"We understand there is a blue slip problem, and we expect the House to assert its rights under the Constitution to be the place where revenue bills begin," the GOP aide said.

The blue slip could lead to one of two likely outcomes. Senate Majority Leader Harry Reid (D-Nev.) could simply drop the issue and let the next session of Congress start from scratch, a strategy that would allow him time in the lame-duck session to tackle other last-minute priorities, such as the expiring 2001 and 2003 tax cuts, a long-term continuing resolution, an immigration bill and a repeal of the military's ban on openly gay service members.

Or he could try to force the issue in the Senate after the House passes a new version of the bill. But in order to do that and still tackle the other issues, he would need a unanimous consent agreement to limit debate.

According to Senate GOP aides, a unanimous consent agreement is all but certain to be a nonstarter because the bill's chief opponent, Sen. Tom Coburn (R-Okla.), will not agree to such a deal.

So far, House Democrats have not commented on the Republican assertion about the "blue slip" process. I will update as more information becomes available.

THIRD UPDATE: Mary Rothschild posted a good summary of the Senate bill and its differences from the House version at the Food Safety News blog.

At the same site, Helena Bottemiller outlined the "rocky road" ahead for this bill:

Sen. Tom Harkin (D-IA), a key proponent of the measure in the Senate, indicated before Thanksgiving that key leaders in the House agreed to take up the Senate version, but it is not clear that is the game plan for House leadership. [...]

House lawmakers who worked tirelessly to get bipartisan support for their version in 2009 have been noncommittal about adopting the Senate version.

"The Senate bill makes improvements to FDA's existing authorities to ensure the safety of the American food supply just as the House bill does," Rep. John Dingell (D-MI), who has been working on food safety legislation for years, told Food Safety News yesterday.  "I commend my colleagues for their hard work over the past year and four months.  However, there are some remaining concerns with the final Senate legislation, but the Senate bill is a still a giant leap forward toward ensuring the safety of the American food supply." [...]

To add to the uncertainty in the House, large produce industry groups, including the United Fresh Produce Association and the Produce Marking Association, are working feverishly to convince lawmakers that the final legislation should not include the small farm exemptions, which were recently adopted into the Senate bill at the urging of Sens. Jon Tester (D-MT and Kay Hagan (D-NC).

FOURTH UPDATE: The constitutional problem could doom the bill:

At his press conference this morning, House Majority Leader Steny Hoyer could barely contain his frustration.

"Unfortunately, [the Senate] passed a bill which is not consistent with the Constitution of the United States, so we are going to have to figure out how to do that consistent with the constitutional requirement that revenue bills start in the House," Hoyer said.

According to Hoyer, this has happened multiple times this Congress, causing severe legislative angina.

Senate Republicans won't allow a quick re-vote on the bill, so it may not move forward during the lame-duck session after all. If Congress has to start over next year, no strong food safety bill will pass. Right-wing talk radio is up in arms over the bill (based on misinformation), so the GOP-controlled House would never pass anything comparable.

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