The Senate Health, Education, Labor and Pensions (HELP) Committee released a copy of the “manager’s amendment” to the FDA Food Safety Modernization Act (S. 510) which is, in essence, the bill as reported out of the HELP Committee late last year as modified by a long and arduous set of negotiations that have taken place since that time to work out particular issues. 

The manager’s package has the support of HELP Chairman Tom Harkin (D-IA) and Ranking Member Mike Enzi (R-WY) as well as the four lead sponsors of the underlying bill, Dick Durbin (D-IL), Judd Gregg (R-NH), Chris Dodd (D-CT), and Richard Burr (R-NC). 

The manager’s amendment will be adopted if and when the bill comes to the Senate floor in September when Congress returns from its summer recess.

The full manager’s package is available at http://help.senate.gov/imo/media/doc/WHI10337.pdf.

The Congressional Budget Office has scored the Manager’s package version of the bill as costing $1.6 billion over the next five years.

In releasing the new version of the bill, Senator Harkin said, “For far too long, the headlines have told the story of why this measure is so urgently needed: foodborne illness outbreaks, product recalls and Americans sickened over the food they eat.  This 100-year-old plus food safety structure needed to be modernized.  I am pleased that after a great deal of time and effort from members on both sides of the aisle, we have a strong, bipartisan proposal that will overhaul our current food safety system – a system that right now fails far too many American consumers.  I am confident that the remaining details will be worked out and am hopeful that the measure will come to the Senate floor as soon as possible.”

Most sustainable agriculture and family farm groups think the Senate bill is a very significant improvement over the companion bill passed by the House of Representatives (HR 2749) last year.  We’ve been able to help make substantial improvements in the Senate bill through the HELP markup and in changes that will be adopted as part of the manager’s amendment when the bill comes to the Senate floor.  Assuming the Tester amendment (see below) can be worked out and agreed to before Senate floor action, we will be able to support the Senate bill.  However, we strongly oppose the companion House measure, and stand ready to defend the Senate bill in conference with the House should that prove necessary.

The Managers package includes the following important improvements to the bill as reported out of committee last year:

• The amendment sponsored by Senator Bernie Sanders (I-VT) pertaining to farms that engage in value-added processing or that co-mingle product from several farms.  It will provide the Food and Drug Administration (FDA) with the authority to either exempt farms engaged in low or no risk processing or co-mingling activities from new regulatory requirements or to modify particular regulatory requirements for such farming operations.  Included within the purview of the amendment are exemptions or flexibilities with respect to requirements within S. 510 for food safety preventative control plans and FDA on-farm inspections.
• The amendments sponsored by Senator Michael Bennet (D-CO) to reduce unnecessary paperwork and excess regulation.  The Bennet language pertains to both the preventative control plan and the produce standards sections of the bill.  FDA is instructed to provide flexibility for small processors including on-farm processing, to minimize the burden of compliance with regulations, and to minimize the number of different standards that apply to separate foods.  FDA will also be prohibited from requiring farms and other food facilities to hire consultants to write food safety plans or to identify, implement, certify or audit those plans. With respect to produce standards, FDA will also be given the discretion to develop rules for categories of foods or for mixtures of foods rather than necessarily needing to have a separate rule for each specific commodity or to regulate specific crops if the real food safety issue involved mixtures only.
• The amendment sponsored by Senator Debbie Stabenow (D-MI) to provide for a USDA-delivered competitive grants program for food safety training for farmers, small processors and wholesalers.  The training projects will prioritize small and mid-scale farms, beginning and socially disadvantaged farmers, and small food processors and wholesalers.  The program will be administered by USDA’s National Institute for Food and Agriculture.  As is the case for all of the provisions in S. 510, funding for the bill and for this competitive grants program will happen through the annual agriculture appropriations bill process.
• The effort championed by Senator Barbara Boxer (D-CA) to strip the bill of wildlife-threatening enforcement against “animal encroachment” of farms is also in the manager’s package.  It will require FDA to apply sound science to any requirements that might impact wildlife and wildlife habitat on farms.
• An amendment proposed by Senator Sherrod Brown (D-OH) to amend the traceability and recordkeeping section of the bill that will exempt food that is direct marketed from farmers to consumers or to grocery stores and exempt food that has labeling that preserves the identity of the farm that produced the food.  The amendment also prevents FDA from requiring any farm from needing to keep records beyond the first point of sale when the product leaves the farm, except in the case of farms that co-mingle product from multiple farms, in which case they must also keep records one step back as well as one step forward. 

Not in the package but still under serious negotiation for inclusion in the bill when it reaches the floor of the Senate is an amendment by Senator John Tester (D-MT) to exempt food facilities with under a certain annual gross sales threshold from preventative control plan requirements and to exempt farmers who primarily direct market product to consumers, stores or restaurants from the bill’s produce standards regulations.  Our expectation is this amendment will be successfully negotiated over the coming weeks and will be accepted as part of the final bill once the bill reaches the Senate floor.

We also continue to note and emphasize the additional provisions NSAC helped secure when the bill was marked up in Committee last year.  Those changes included:

• requiring FDA and USDA coordination (including with respect to organic farming);
• limiting recordkeeping for farmers to just the initial sale to the first purchaser of the crop; and
• language in the produce section directing FDA to create rules that are appropriate to the scale and diversity of the farm, that take into consideration conservation and environmental standards established by other federal agencies, that do not conflict with organic certification standards, and that prioritize high risk crops.

Still pending is an amendment from Senator Feinstein (D-CA) banning the use of Bisphenol A (BPA) in all food and beverage containers.  The Grocery Manufacturers Association and other industry groups have come out strongly against the measure.  Negotiations are ongoing to work out compromise language, but it is unclear to us what the status is of those talks.