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Status of Food Safety Bill

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In response to a large peanut butter recall early in 2009 a bi-partisan coalition of Senators introduced a bill to amend the Federal Food, Drug and Cosmetic Act of 1936. Yesterday the Senate passed the bill – S.510 the FDA Food Safety Modernization Act providing for broad sweeping changes to our food safety framework – and the House was set to take up and pass the measure this week. However, the bill could be headed back to the Senate for another vote after the bill circumvented a constitutional requirement which requires that the inclusion of new permitting and inspection fees included in the measure originate in the House of Representatives.

IMPACT

The bill will make fundamental changes to the authority of regulatory agencies in the event of a crisis. Where product recalls has previously been voluntary, a producer may now be compelled to recall a product in the event of an outbreak. Additionally, an amendment added to the bill by Senator Tester (D-MT) strongly opposed by some factions of the food industry would exempt small businesses under certain circumstances. Other significant provisions in the bill include:

  • Allows the inspection of records of food that the Secretary (HHS) reasonably believes is likely to be affected in a similar manner as an adulterated food

  • Authorizes the Secretary (HHS) to suspend the registration of a food facility if the food manufactured, processed, packed, or held by a facility has a reasonable probability of causing serious adverse health consequences or death to humans or animals.
  • Sets forth requirements for mandatory testing to be conducted by federal laboratories or accredited nonfederal laboratories and stipulates that such results be sent directly to the Food and Drug Administration (FDA)
  • Requires the Secretary (HHS) to review results from any sampling and testing that lead to a state or locality issuing a food recall to evaluate the need for a national recall or other compliance and enforcement activities.
  • Revises the standard for the administrative detention of food to allow such a detention if the FDA has reason to believe that such article is adulterated or misbranded.
  • Requires U.S. importers to perform risk-based foreign supplier verification activities to verify that imported food is produced in compliance with applicable requirements related to hazard analysis and standards for produce safety and is not adulterated or misbranded.

CONSTITUTIONAL PROBLEM

In lieu of sending the bill back to the Senate without action under a process known as “blue-slipping,” or rejecting a Senate bill that contains revenue raising provisions, Democrat leaders are examining options to solve the constitutional problem so the legislation can become law. Supporters of the bill believe that the bill can become law prior to the end of the month.

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