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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Has the Food Safety Train been derailed? Can it get back on track before the year’s end?

trainwreck2.jpgS. 510, the food safety bill that passed just yesterday after languishing in the Senate for nearly two years appears deadlocked because Senators violated a constitutional provision requiring that tax provisions originate in the House (“shall originate in the House of Representatives”). Section 107 of S. 510 included a set of fees that are classified as revenue raisers, which are technically taxes under the Constitution. Section 107 states:

Directs the Secretary to assess and collect fees related to: (1) food facility reinspection; (2) food recalls; (3) the voluntary qualified importer program; and (4) importer reinspection.

As you might also recall, in the House version of its food safety bill, H. R. 2749, lies Sec., 743. FACILITY REGISTRATION FEE.

(b) Fee Amounts-

(1) IN GENERAL- The registration fee under subsection (a) shall be–

(A) for fiscal year 2010, $500;

So, the key words are “shall originate in the House of Representatives.” This eliminates the possibility of concurrent action, e.g., like working the Senate Bill and House Bill differences out in a Conference Committee. The House needs a version of the Senate Bill adopted without a revenue raiser in it – (Section 107 needs to be deleted). Then the House can add it back in (I do not know, but assume that it will require a House vote) and send it back to the Senate for a vote – again. Then Senate must vote again. Of course, the House could send it back with H.R. Sec 743 ($500 Registration fee – which would raise about $225,000,000). However, it is uncertain if the Senate would agree to a vote on a revenue raiser (i.e., Taxes).

So, is there a way out? Perhaps the House Parlimentarian can be convinced that Section 107 is not a tax. I am reading “The Origination Clause of the U.S. Constitution: Interpretation and Enforcement,” on the way home on the ferry. Tune in Thursday on that.

And, then there is a brewing debate about the Senate’s addition of the Tester/Hagen Amendment (which if not added would have likely stalled the entire Senate bill). The final Senate bill included the amendment, authored by Sen. Jon Tester, D-Mont. It exempts farms with sales of less than $500,000 a year from the new food safety requirements if they sell most of their food directly to in-state consumers, or to consumers within a 275-mile radius of the farm.

“It protects the jobs of family farmers and ranchers and processors,” Tester said during the Senate debate.

However, now, according to the Miami Herald, farm-region lawmakers and agricultural groups fear tainted food coming from one farm could cause a broader public health scare that chills the overall business.

“The agriculture industry is very concerned,” Rep. Dennis Cardoza said Wednesday.

Cardoza, a Democrat who represents California’s farm-rich San Joaquin Valley, denounced as an “abomination” a Senate amendment that exempts certain small farms from the new food safety standards. That exemption sparked objections from the National Cattlemen’s Beef Association, the California-based Western Growers Association and United Fresh, which represents fresh produce growers.

“A small farm can devastate the industry as easily as a big farm,” Cardoza said.

1. Assuming these bills become law before the end of the year, AND it contains the Tester/Hagen Amendment – can we quantify who exactly is being excluded and from what? And, what is the likely outcome with respect to foodborne illness outbreaks? Frankly, I thought the original language in both S 510 and HB 2749 had enough to exclude small farm direct sales to consumers, restaurants and restaurants, but the Tester/Hagen Amendment simply got too much traction by the Senate waiting over a year to really move on the Bill. Compromise is not pretty, but it is better than living in “a democracy of one” in North Korea.

2. Assuming these bills become law before the end of the year, AND it contains the Tester/Hagen Amendment – what financial resources would the FDA need to perform all tasks? What would the provision regarding CDC and State HD’s cost? Basically, what is the real cost of giving the agencies the tools to do their job as presently defined and added to by this Bill?

So much more to discuss.  Aren’t ya glad I have a blog?

  • http://gogreenteaparty.com/blog/ RainforestMoon

    If you look at the FDA budget increase request for 2011, it seems the added cost for them to perform all the tasked have already been planned for.

    Transforming Food Safety (+ $318.3 million)

    The Transforming Food Safety Initiative reflects President Obama’s vision of a new food safety system to protect the American public. The FDA will set standards for safety, expand laboratory capacity, pilot track and trace technology, strengthen its import safety program, improve data collection and risk analysis and begin to establish an integrated national food safety system with strengthened inspection and response capacity.

    http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm199516.htm

  • Chuck Jolley

    I get more angry notes when I write anything about the problems inherent in small production sites. The little guy is just as liable to kill someone with tainted product, maybe moreso. Two problems with the Tester amendment: (1) Many small producers that would get a pass have little or no access to the science needed to identify pathogens and less knowledge of where to look for problems in their process, and (2) their product with its limited distribution has a good chance of flying under the radar so any problems may never be discovered.

  • Gabrielle Meunier

    Hi Bill,
    As you and I know the issue over registration fees seemed to be a dealbreaker with the Senate from the very beginning (unfortunately). What I interpret what the Senate did was not “raise revenue” but give the Secretary authority to issue fees as might be needed in the future, hence no direct revenue raising. Also, as in the Report to Congress on Interpretation: “the Senate may not originate any measure that includes a provision for raising revenue, and second, the Senate may not propose any amendment that would raise revenue to a non-revenue measure. The Senate, however, may generally amend a House-originated revenue measure as it sees fit.” I see the Senate as merely giving the Secretary authority AND they were amending “a House-originated revenue measure as it sees fit”.
    Is there anyone I can plead the argument to?!!!
    Gabrielle

  • http://www.marlerclark.com/wmarler.htm Bill Marler

    thanks.

  • Jeff Almer

    I will simplify this issue and not argue the intricacies of what needs to be done. The fact of the matter is that the House did their part and got their jobs done by passing the bill in the summer of 2009. Now, you have a Senate that passed it through committee unanimously months ago in November 2009. I should point out that Tom Coburn himself voted for the bill then. Personally I don’t care what other issues they dealt with in the past 13 months; the fact of the matter is that the Senate waited until the last minute. This has to be blamed on the leadership starting with Harry Reid. While I applaud the efforts of Senator’s Durbin, Klobuchar, Harkin, and the many others; this is absolutely inexcusable! Do your damn jobs! How do you commit such a procedural mistake AGAIN, when Reid did the same exact thing last spring with a Tourism bill?

  • http://www.healthyfoodcoalition.org Harry Hamil

    @ Jeff Almer. I am sorry about the loss of your mother. However, you are wrong about Sen. Tom Coburn. Like Sen. Richard Burr, he was NOT present on 11-18-10. The vote was only 16-0 in the H.E.L.P Committee. Sen. Coburn has been against this bill throughout.

  • Lisa Halton

    This bill is a bunch of bad baloney -the FDA does not need more money to do their job, they are already paid enough. The problem is they are not doing their job, not inspecting and not fining the offenders. We don’t need more power to do this, the 12 agencies on fed. and state levels have enough power to do their job. This has some sneaky clauses that make it more difficult for small independent growers to compete, it also puts restrictions on home grown food in your back yard? These are not the problems, the factory farms and imported garbage is -just go to Walmart and try to buy organic chicken grown in the USA? Not available because they are importing this crap from China, who are raping our economy. Put restrictions on food imports -not American small farms. This is a disgrace and should be shoved to the back of the line, we need jobs, and a healthy foods that come from small clean independent farms not the corporate interests of the likes of Wright County Egg. Don’t bull the public, we know better what this is all about.

  • Gabrielle Meunier

    Lisa, unfortunately this bill isn’t “bad baloney” but unless that baloney is getting inspected regularly at the plant from which it came, it could be “bad baloney”. Facts given say that processing plants get inspected once in every 10 years due to lack of resources. The plant that poisoned my son was filthy, rat infested, and it’s Texas plant wasn’t even registered to produce food. The owner of the plant knowingly poisoned the American Public. Now that is “bad baloney/peanuts”. S. 510 recognizes that less than 1% of imported food gets inspected and recognizes that we must do better than that. Yikes, did you know that? It requires that foreign manufacturers that want us to import their products, adhere to similar pathogen prevention processes that we follow. Now that is “good baloney”. When my son was poisoned it took over 2 months for the governmental agencies to figure out what was killing and maiming people. 2 months. Only to find out it was peanut paste. Now that truly is bad baloney. I do not know where in the bill that restricts anyone growing food to feed themselves! As a matter or fact the bill exempted farms that sell directly to the public. The Tester Amendment took that exemption farther. So while I agree that we need jobs, but if we can’t eat safely and die from preventable pathogens, then the jobs won’t matter — we’ll be dead.