On Tuesday, November 30, a year after it was reported out of Committee, the Food Safety Modernization Act (S.510) passed the Senate, 73-25.
The bill, which will require improved planning and record-keeping by food producers and processors and will allow the Food and Drug Administration (FDA) to make mandatory recalls of contaminated food, marks the most sweeping overhaul of food safety regulations in nearly a century.
The final Senate bill includes six amendments that were worked on by small farm advocates like National Sustainable Agriculture Coalition (NSAC) and that each became part of the Manager’s amendment that the Senate has now approved. Those include the amendments championed by:
- Senator Sanders (D-VT) providing FDA 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.
- Senator Bennet (D-CO) to reduce unnecessary paperwork and excess regulation required under the preventative control plan and the produce standards sections of the bill, including instructions to FDA to minimize the number of different standards that apply to separate foods, to make requirements scale appropriate, and to prohibit FDA from requiring farms and other food facilities to hire outside consultants to write food safety plans.
- Senator Debbie Stabenow (D-MI) to provide for a USDA-delivered competitive grants program for food safety training for farmers, small processors and wholesalers, with a priority on small and mid-scale farms.
- Senator Barbara Boxer (D-CA) to strip the bill of wildlife-threatening enforcement against “animal encroachment” of farms and require FDA to apply sound science to any requirements that might impact wildlife and wildlife habitat.
- Senator Sherrod Brown (D-OH) to exempt farmers from extensive and expensive traceability and recordkeeping requirements if they sell food directly to consumers or to grocery stores, to allow labeling that preserves the identity of the farm through to the consumer to satisfy traceability requirements, and to in most cases limit farm recordkeeping to the first point of sale when the product leaves the farm.
- Senators Jon Tester (D-MT) and Kay Hagan (D-NC) to give very small farms and food processing facilities as well as direct-market farms who sell locally the option of complying with state regulation or with modified, scale-appropriate federal regulation.
It is now being revealed that US Senators slipped up in a big way when passing the Food Safety Modernization Act on Tuesday: They added what are effectively "new taxes" into the bill, and according to the U.S. Constitution, only the House of Representatives can initiate legislation requiring new taxes.
Thus, the House is now obliged to give this food safety legislation the so-called "blue slip," meaning that it rejects the law and sends it back to the Senate for yet another vote. This would take time and effort, of course, and the Democrats have very little of either remaining in their lame duck session.
As explained on Wikipedia (http://en.wikipedia.org/wiki/Blue_slip):
"This blue-slipping procedure, done by an order of the House, is routinely completed to enforce its interpretation that the House is the sole body to introduce revenue or appropriations legislation. The failure of the House to consider the legislation means it cannot become a law. This tactic has historically proven to be of great use to the House and, as a practical matter, the Senate does not introduce tax or revenue measures to avoid a blue slip."
In other words, the House wants to remain the sole originator of all new taxes and will therefore need to "blue slip" S.510 in order to slap the hands of Senators who are trying to enact their own new taxes under the bill. The upshot of this is that this fight is not yet over. Unless the House makes an unprecedented exception to this blue slip rule, this legislation will apparently need to go back to the Senate floor for another vote.
This story was first reported by RollCall.com (http://www.rollcall.com/news/-20101...) which says, "The debacle could prove to be a major embarrassment for Senate Democrats, who sought Tuesday to make the relatively unknown bill a major political issue by sending out numerous news releases trumpeting its passage." (http://www.rollcall.com/news/-20101...)
According to Roll Call, "The blue slip could lead to one of two likely outcomes. Senate Majority Leader Harry Reid (D-Nev.) could simply drop the issue and let the next session of Congress start from scratch..."
"Or he could try to force the issue in the Senate after the House passes a new version of the bill. But in order to do that and still tackle the other issues, he would need a unanimous consent agreement to limit debate."
But unanimous consent is impossible thanks to the heroic efforts of Senator Tom Coburn (R-Okla) who has stood firm on his belief that this bill is too large, too expensive and puts too much of a burden on American farmers.
If this assessment is correct, it looks like S.510 is now dead in the water and cannot be resurrected until the next session of Congress in which there will be far fewer Democrats (there was not a single Democrat in the US Senate who opposed the bill).
Will the new incoming Senators put forth amendments like those above in the resurrected bill? These amendments protect hardworking small farmers and entrepreneurs from regulations designed to make industrially produced food safer. A food safety bill without these protections will stifle economic development in communities across the country and create hardship for small farmers in what is already a tough economy.