The final vote on S.510, the Food safety Modernization Act, is scheduled for this evening (Monday, November 29). The first step will be a cloture vote to allow the Managers Package version of the bill to proceed, which will require 60 votes. Four amendments will then be debated, followed by a final vote on the bill.
As it currently stands, the Managers Package of the bill includes the Tester-Hagan amendment. For many months, we have been pushing for this amendment to be included in the bill to carve out a sphere of protection for small-scale, direct marketing producers. The version of the Tester-Hagan amendment that is included in the bill exempts producers grossing under $500,000 (adjusted for inflation) and selling more than half of their products directly to qualified end users from the HACCP-type requirements and the produce safety standards. Qualified end users means individual consumers (with no geographic limitation), or restaurants and retail food establishments that are EITHER located in the same state OR within 275 miles of the producer. While complex, this amendment effectively carves out small-scale producers who are selling in-state or to local foodsheds from two of the most burdensome provisions of the bill.
At the same time, we dont think S.510 is a good bill even with the amendment. It increases FDAs power, which will undoubtedly lead to even more battles between FDA and local food producers and consumers. FDA has abused the powers it already has, and that will almost certainly continue, with or without this bill.
We also know that Big Agribusiness is NOT happy with the inclusion of the Tester-Hagan amendment in the bill. Groups such as the Produce Marketing Association and the Western Growers Association are busy lobbying the Senate to try to have the amendment pulled back out.
As bad as the bill is now, it would be even worse without the amendment!
Different people and organizations have different views, so you may get conflicting advice. Our belief is that the bill will most likely pass the Senate, and that it is critical to ensure that the protections of the Tester-Hagan amendment are not lost in last-minute backroom deals.
If S510 passes the Senate this week, there is still more to come. First, the bill will go to the House of Representatives. Rather than try to reconcile the bill with the House version (HR 2749), the House leadership has agreed to put S510 to a vote on the floor of the House. Because time is running out for this Congress, any changes by the House would almost certainly kill the bill. If the House passes S510, it then goes to the President.
Second, next year, Congress will face the question of appropriating money to implement the new laws and regulations. S510 authorizes, but does not appropriate, monies for the FDA-expanded regulation of domestic and imported conventional food producers, distributors, and retailers, and the hiring of more FDA bureaucrats. To carry out all of the new rules and FDA authorities, Congress will have to approve $1.4 billion of new spending or cut other programs accordingly, based on the CBO estimates. This gives us a chance to affect the level of funding and how the money can be spent.
Third, FDA will start the rulemaking process. The agency will almost certainly try to marginalize the role of local foods producers and consumers in the process. We will have to take action to ensure that our concerns are on the record and that elected officials in Congress are also involved to try to rein in the agency from overstepping its bounds.
ACTION TO TAKE:
Call your Senators and ask to speak to the staffer who handles food safety issues. Urge them to, at a minimum, stand firm on including the Tester-Hagan amendment in the bill. Explain to them that local food producers and consumers already face problems because of FDA, and we are worried about what FDA will do with expanded powers. And then look beyond the bill, and ask them to take action to protect local food producers through the appropriations process and through oversight of the agency. Tell them that you will hold your Senators accountable for what FDA does, and that their job does not end with this bill.
If you get their voice mail, leave a message: My name is ____, and I am a constituent who is concerned about the expanded authority that FDA would have under S510, the food safety bill. I urge Senator _____ to, at a minimum, ensure that the Tester-Hagan amendment stays in the bill. The FDA has a track record of abusing its authority to go after small-scale producers, while turning a blind eye to the many problems caused by large industrial producers. With or without S510, I urge my Senator to take steps to rein in the FDAs abuses. I would like to talk with you more about this, please call me back at ________.
You can call the Capitol Switchboard at 202-224-3121 and ask to be connected to your Senators offices. You can also find your Senators contact information online at
If their phone line is busy, you can use their web form to contact them or fax a short note.
OTHER NOTES OF INTEREST
During the last several months, we have also asked you to call on two other amendments to the bill: to support an amendment to ban BPA and to oppose an amendment to add criminal penalties. Senator Feinstein chose to withdraw her amendment to ban BPA in the face of industry opposition. Senator Leahys amendment to add criminal penalties appears to be dead, although we will continue to watch for it.