The Food Safety Modernization Act (S510): Sifting through the Madness

Anyone up for some informed dialogue about this bill?

Several months ago, my email inbox starting blowing up with emails about Senate bill 510, the Food Safety Modernization Act.  Maybe yours did, too.  Via a listserv I subscribe to, I got a lot of emails telling me to call my senators to oppose the bill, that it would be a death knell for small farms, and I got a few emails asserting that concerns about the bill were not preposterous, and I got a surprising number of emails just begging for someone to please explain this mess.  Of course there were also those Fwd:Fwd:fwd emails telling me the bill would make seed saving and community gardening illegal.

For example, I give you this gem "the most dangerous bill in the history of the United States of America, it would grant ... Big brother the power to regulate the tomato plants in your backyard. It would grant them the power to arrest and imprison people selling cucumbers at farmer's markets."  Really?  It had that familiar feel of fear mongering.  No specific section of the bill was referenced.   My background was in the natural sciences, I am a stickler for references.

I searched online for sources I trust with an informed discussion or opinion on the bill.  I found nothing but news stories with the familiar "supporters say" and "but critics claim".   I remained skeptical and stayed out of the email slinging fray.  No sense throwing another uninformed decision into the pot.

And then, like a light in the dark, I read an opinion piece in the New York Times written by Michael Pollan and Eric Schlosser, who had this to say; 

The best opportunity in a generation to improve the safety of the American food supply will come as early as Monday night, when the Senate is scheduled to vote on the FDA Food Safety Modernization bill.  This legislation is by no means perfect. But it promises to achieve several important food safety objectives, greatly benefiting consumers without harming small farmers or local food producers.

Hallelujah, someone I trust!  For me, this raises all kinds of issues that I have with Thinking For Oneself vs. Deferring To The Experts.  On November 30th, S.510 passed with the Tester Amendment.  And yesterday I decided that I should finally read the bill myself.  Nothing like primary sources of information!  I will expose myself with the embarrassing caveat that this is only the second piece of (modern) federal legislation that I have read.  It was a doozy, you can read it yourself if you want.

Here is what I understand (or think I understand) about S.510.  The main thrust is protecting consumers by increasing the capacity and authority of the FDA to do the following:

• trace outbreaks back to their source
• require more frequent inspections for higher risk operations
• test for food pathogens
• mandate a recall (surprisingly, the FDA does not currently have this authority)
• hold imported food to the same standards

Despite the fact that the bill does include language designed to ensure that regulations and requirements are scale appropriate for small farmers and processors, there was significant and legitimate concern that this bill could have an adverse effect on small and local food producers.  Enter the Tester Amendment.   This amendment exempts "very small businesses" and farmers that sell less than $500,000 worth of food each year AND sell over half of that direct to consumer (not through a third party broker) AND sell the majority within the state or within 275 miles of the farm.

The PR machines of agricultural trade groups are strong.  The brief story I heard about the bill on NPR had a decidedly negative spin and referred to the Tester Amendment as a loophole.   Some of this groups have used the Tester Amendment as an excuse to pull support for a bill they never liked, but would make them look really bad for opposing.  A little reason, anyone?  The kinds of farms exempted make up 1% of the marketplace.  Have you ever heard about a food-borne illness originating at a farmers markets or CSA?  Massive and broad reaching food safety issues have arisen as a result of the increasing consolidation of our food system, not from farmer Joe's produce stand.

What's up next?  We're not sure.  According to Food Safety News, "the Senate version is in serious jeopardy because it contains a provision raising fees that is technically unconstitutional.  Article 1, Section 7 of the law of the land says that revenue-raising provisions must originate in the House.  It remains unclear whether the House will pass a version amendable to the Senate in the next week or two, or whether Congress will have to start over in the 112th session in 2011."