T’was the Friday before Christmas and all through the House – and Senate…
Perhaps an out of context fairytale is not how you expect me to start a discussion about the Food Safety Modernization Act (FSMA), or “Fizz Ma” to some. However, FSMA is a modern political tale that almost did not come true in the late days of 2010 in the nearly empty hallways and offices of congressional leadership. But, first I must digress.
Until January 1993 I had never given much thought to safe food. I assumed, like most Americans still do, that our food supply is, as our politicians always remind us, “the safest in the world.” Yet, standing in the ICU watching a young Jack in the Box E. coli victim struggle against a deadly toxin, it was impossible to see food, certainly not hamburger, as safe.
In 1993 and through the congressional elections a few years later, a flurry of food safety ideas came from politicians until those ideas were crushed in the argument against trying to insure that all American’s had health insurance and the elections that swept “The Contract with America” into office. Although the Jack in the Box E. coli outbreak, with nearly 700 ill and four children dead, outraged a nation and nearly brought the beef industry to its knees, without more ill and dead over a sustained period of time, memories faded and the broad, substantive food safety changes, were shelved.
However, the 1990’s were not a complete food safety disaster. One act, thought at the time heretical, managed to slip through, but it certainly did so with much notice. In 1994, Mike Taylor, then head of USDA’s Food Safety Inspection Services (FSIS), stood before the all powerful American Meat Institute (AMI) and announced in clear and simple language that hamburger could no longer be sold with the type of E. coli in it that caused the Jack in the Box catastrophe. The AMI, and others, sued FSIS to stop such crazy behavior. However, thanks to good lawyering, a wise court and the beef industry turning a loss into a win, our hamburger is safer today that at anytime in the last two decades. In the 1990’s E. coli cases linked to hamburger accounted for most of my law firm’s revenue, today that is nearly zero. Less money because there a fewer kids with kidney failure linked to hamburger – that is a good thing.
But, as “the hamburger disease” slowly died, foodborne outbreaks were being linked to nearly everything else in the refrigerator and pantry – apple juice, lettuce, spinach, sprouts, peanut butter and cookie dough – sickening thousands and making headlines – and lawsuits. Some of the tainted products were mistakes in mass production, others locally grown, organic fare. As imports increased so did food poisoning issues from hepatitis A berries from South America to Listeria in fancy cheese from Italy. By 2006 it seemed that there was a foodborne illness outbreak a week, and with a different political wind blowing through the capital, food safety ideas once shelved, were dusted off, and were being discussed once again.
By now, I had been in the food safety world for well over a decade and had taken much from the food industry on behalf of their customers. I had money, and I made use of it to secure access to the offices of politicians to discuss “why it is a bad idea to have poisoned voters.” I also spent time speaking to the food industry around the world on the topic of “put me out of business.” It is funny how donations of money and the ending of my career were topics both groups enjoyed.
It was late 2006 and I was in D.C. for the – I cannot recall how many times. I had spent the morning shepherding clients to hearings to explain the devastation of being poisoned by food. I had a few moments to meet some senate staffers on the ideas they had shelved over a decade ago, but felt now was the time to modernize food safety legislation for the first time in over 50 years. As I was escorted out a back door I began the walk down a very long senate office hallway. As I moved along towards the elevator at the far end, I nearly bumped into the somewhat new senator from Illinois as he and a staffer headed quickly to the same elevator. As we all walked in silence and waited for the same elevator, the youngish senator, who I had met a few years earlier at a fundraiser in Seattle, looked over at me. Perhaps he recognized me but most likely he did not. I smiled and introduced myself.
Over the next few years I gathered frequent flyer miles on the straight shot from Seattle to D.C. Again, sometimes attending hearings with clients, sometimes meeting with congress members and senators, and even once testifying. I watched as the shelved food safety ideas of the 1990’s came alive in committee rooms. By the summer of 2009, what was the House version of FSMA was passed overwhelmingly with both democrat and republican support. Industry and consumers came together to work all sides of the isles. FSMA headed to the senate where senators had already been working on a similar version of the groundbreaking legislation. And, then it stalled.
By now the fight over what to do about the near economic collapse of 2008, and the anger generated by the introduction and passage of the Affordable Care Act (a.k.a “Obamacare”), had sucked the ability to agree on much of anything out of the senate, in fact most of D.C. Both the house version and the senate version were going nowhere as was any other meaningful legislation for that matter.
What little movement that was occurring in the senate on food safety now centered over how to unwind many provisions so as to not potentially impact smaller and more local agriculture with those “damn food safety regulations.” Those actually concerned with being against “one size fits all” legislation, merged with proponents of raw milk and other “any government is bad” groups to form what I described as the “Teat Party” as they tried to convince us that the “government was going to take over our backyard gardens.”
The 2010 midterms changed the political dynamic swinging the house to another party. Although the senate stayed the same, no significant legislation, less alone FSMA moved. Finally, as fall moved to winter, the senate passed its version of FSMA. Problem, however, was that what the senate passed was supposedly constitutionally incorrect. The senate passed version had a clause inserted that required a charge for a re-inspection in certain circumstances. The house, which by the constitution can set “taxes,” viewed this charge as a tax and “blue slipped” the senate’s version sending it back the other side of capitol hill.
Over the next months as senators eyed the exit door that is Christmas, FSMA competed with the “Dream Act, “Don’t Ask Don’t Tell” and other worthwhile legislative initiatives. I recall one trip to D.C. on a crowded elevator with young Hispanic merit scholars and muscled service members thinking to myself that FSMA now was competing for the last weeks of 2010 with smart kids about to be deported and gay service members who fight for our freedom. I pushed myself to the back of the elevator.
By the Friday before Christmas I had spent the week urging senators from both parties to move FSMA back to the house before the recess. In the early afternoon of that Friday, I was sitting in the office of one senator listening to a long description of what was either lactose intolerance or an aversion to gluten, when I was summoned to a meeting of top senate staffers. As I was ushered into a meeting room off the majority leaders office alarms went off – apparently a guy with a gun had tried to enter the capitol. The door was promptly locked from the inside and we were all ordered to stay. After a few awkward moments were we all likely contemplated rather being somewhere else, we started talking about food safety.
The staffers all pointed to the lack of time left to move anything out of the senate and back to the house for a vote and the logistical issues surrounding FSMA’s constitutional flaw. I left discouraged and took a late flight out of Dulles.
Ironically, as I pen the piece, I am sitting in the same chair where I received an email the following morning from one of the senate staffers telling me they had figured out how to get the senate version of FSMA back to the house for a vote before Christmas. This time when the bill passed the house it did so by a small majority (nearly 75 members had already left D.C. for vacation).
That “youngish senator” I had walked the hall with a few years previously signed the bill shortly thereafter. I have a signed copy of the bill on my wall.
Will FSMA end my law practice? Honestly, it is too early to tell. Most of the rules are still being written, being commented on or being implemented. Needed additional funding of inspectors has not been appropriated.
Many of you reading this article will be at the forefront of what FSMA will actually look like in practice. For those of you that have the baton of implementation, as you do your jobs remember that the kids I have represented in the last 20 years are much like the kids you go home to at night.
Yes, it is time to end my practice.