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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Senate Passes Food Safety Overhaul – S 510 Passes 73-25 – broad bi-partisan support – How long will that last?

I got up really early to watch the vote of CSpan and still can not quite beleive it passed and with a margin of 73 in favor and 25 against.  The Bill that in large part will do:

  • food-safety-rating-system.jpgAllow the FDA to order a recall of tainted foods;
  • Require larger food processors and manufacturers to register with the Food and Drug Administration and create detailed food safety plans (Tester/Hagen Amendment excluded most small farmers from FDA regulatory oversight) ;
  • Require the FDA to create new produce safety regulations for producers of the highest-risk fruits and vegetables;
  • Require CDC and State Health Departments to coordinate Foodborne Illness surveillance;
  • Establish stricter standards for the safety of imported food;
  • Increase inspections of domestic and foreign food facilities, directing the most resources to those operations with the highest risk profiles.

From a pro legislation perspective, I am pleased that it has passed the Senate, but I wonder how it will be able to get through the House and to the President’s desk before years end. I am most heartened that passage was one of the most bi-partisan votes we have seen in a very long time. It is good to see R’s and D’s coming together to actually try and doing something good for the American people. Perhaps this means we can work together to solve the budget deficit, two wars, unemployment – Sorry, I got caught up in the moment. I’ll leave the comments on the cons to this email I got this morning:

This Bill is a disgusting breech of democracy. It does the opposite of what it claims. It’s nearly impossible to get natural healthy food in the market. I hate this. It’s evil. I want to eat unprocessed food. food that actually tastes goodand is chemical and cruelty free. This is fascist. I don’t tell you what to eat! Get out of this kind of bullying. You only serve corperate interest not the people.

We clearly have more work to do.

  • http://fanaticcook.blogspot.com/ Bix

    I am so glad … and glad to see that imports will get more oversight, both here and abroad. I think it’s a vulnerable area.
    William Hubbard, a former associate commissioner of the FDA who served for 14 years, said back in 2007:
    WILLIAM HUBBARD: Well, let’s look at, this is apple juice. Now, you think apple juice is as American as apple pie. But in fact, much of our apple juice comes from China. And what FDA has been finding is they would water down the apple juice, add a chemical called inulin.
    BETTY ANN BOWSER: The Chinese?
    WILLIAM HUBBARD: Yeah, and inulin would make it taste just like real apple juice and even FDA’s own labs were having trouble finding a chemical in there. It was really an economic fraud to water down real apple juice and only use a small amount of real apple juice. And that was a very common problem and goes on today.
    BETTY ANN BOWSER: Wait a minute. Let’s see what this label says.
    WILLIAM HUBBARD: You won’t see anything on it. It just says apple juice.
    BETTY ANN BOWSER: It says 100 percent juice from concentrate.
    WILLIAM HUBBARD: Well they lie.
    BETTY ANN BOWSER: But the label says 100 percent…
    WILLIAM HUBBARD: It should be. What I’m saying is the, with the coming in bulk from China, it will often, they’re telling Harris Teeter, this is 100 percent apple juice and FDA is trying to make sure that it is before it ever gets in that bottle. But they have developed such nefarious techniques for disguising their watering down of the real apple juice that even the FDA laboratories are having difficulty finding this compound inulin, which mimics the chemical composition of apple juice.
    BETTY ANN BOWSER: So how do I know when I’m getting a jar of real apple juice at the store?
    WILLIAM HUBBARD: You don’t.
    From:
    http://www.pbs.org/newshour/bb/health/jan-june07/foodhubbard_06-08.html

  • Carl Custer

    Comments are fun:
    http://community.nytimes.com/comments/www.nytimes.com/2010/12/01/health/policy/01food.html
    and if you subscribe to Meatingplace, even funner.

  • ray

    Hey Bill! While you are aware that I respectfully disagree with you on this bill, two questions for you:
    1. Do you know that status of the reconciliation process in the house.
    2. Question setup: In only the last few years, America began importing more food than it produces. Much of it comes from China unfortunately. This issue (chemicals, additives and other things even outlawed here) is where some of the greatest concerns lie..ie . apple juice story. (They even poison their own people.) We have laws to protect food production here. We have the safest food supply in the world. We have an effective criminal and civil legal system where there are less jurisdictional problems and the system works. With that said:
    The question: Rather than finance and pay for a bureaucracy to regulate food further and increase the costs of food to the American citizen to mainly protect us from foreign sources, while making it more difficult for American farming who already face large obstacles, would it not be better to do everything we can to assist American farming to gain back strength, once again, produce more food than we import, and focus safety efforts on imports through homeland security? I would think this approach would encourage homemade producers to voluntarily improve food safety with the understanding that if they did not, they would face possible increased regulation and stiffer criminal penalties?
    Seems to me that a voluntary approach would be more accepted, more efficient, more effective and less costly than a paternalistic shoving something down someone’s throats that makes it harder to farm, increases administrative costs to farm, consolidates the markets into fewer players, discourages new farming and will make some farms unprofitable?
    Any thoughts?
    Thanks, @ConservativeRay

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

    1. Good Question – See my last few posts for details on where I think things are and some perhaps ways out of the mess. In Summer 2009, I asked Senate R staff why they did not have funding in S. 510. I was told that they did not want to vote on a tax increase so there was not revenue raised in Senate Bill. They then expected to simply agree to House Bill 2749 $500 registration fee in conference and avoid the vote. Where are we now? I do not think Section 107 of S. 510 is a tax that goes against the origination clause, but my opinion does not count. At this point, I think the only option is for the Senate to agree to strip Section 107 out (I do not believe this requires a vote, although it may well). Then I think the two bills can go to conference and NOT require a re-vote by either chamber. But, what I am hearing is that both House and Senate leadership (Rs and Ds) think that the Senate will need to vote to strip Section 107 (will need to overcome Coburn filibuster) and then the House must assent to the Senate Bill – shades of vote of Health Care. However, some House members are pulling out over the Tester Amendment because they think the exclusions to small farmers are too broad.
    I’ll get to Question 2 when I can.

  • Franklin Kiser

    We should stop regulating the pants off of our American farmers so they can compete with ,say, Mexico. Where they are allowed to use chemkcals our farmers aren’t Alot have been put out of busiiness due to regulations. Do you auctually think this bill is going to do anything except put more restrictions on our farmers. Do you really think it will stop the Chinese, the Mexicans from doing what they are already doing? We need to enforce what we already have. For instance the eggs. We already have regulations but someone dropped the ball. We were told that there is not enough inspectors. What makes one think this bill will add more secure inspection or add inspectors?

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

    Question 2 – Ray, we do not have the safest food supply in the world. I am really sick of people saying that. Perhaps because I see the devastation that our “safe food supply” wreaks upon my clients, I am a bit biased, but Europe and Australia frankly to a far better job.
    Imports – I know that is a great thing to be afraid about, but the reality is that US Corporations do a great job of poisoning us. I have been involved with every major foodborne illness outbreak since 1993. Only a very small handful of those cases involved imports. Imports certainly have caused issues, and we are importing more food, but that is really not the issue. One thing this Bill would have done is to require more inspectors inspecting imports. I have also been to China four times giving talks on safe food. They get it that they are under the microscope – and should be.
    Legal System – most people never figure out what food poisoned them and most people never hire a lawyer let alone sue anyone. I am very selective on the cases I take – generally it is stool culture positive as part of a known outbreak (with receipts, left over food, etc). As for criminal prosecution, when has that ever happened? The PCA guy sickened 700 and killed 9 and he is where? Playing golf.
    I grew up on a farm – that was 40 years ago. We now have 300,000,000 American’s. Farmer’s markets are not going to feed us.