Nov 24 2010

Facts and rumors: the current status of S. 510

Following the ongoing saga of S. 510, the Food Safety Modernization Act, is like taking a graduate course in political science.   And sociology graduate students everywhere should be writing dissertations on how a bill designed to help protect the public from food hazards like Salmonella and E. coli O157:H7  became a flashpoint for debates about the role of government in personal choice.

Let’s start with the rumors.   I’m hearing from sources inside the Beltway that the Senate and House have agreed to pass S. 510 in part because they can use it to get something else they want: repeal of an annoying provision in the health care reform act passed last spring that requires 1099 tax reports for business purchases.

The Senate is said to be dealing with S. 510 late in the afternoon or early evening of Monday, November 29.  It is supposed to work like this:

  • There will be a cloture motion, which will pass with 60 votes.
  • The Senate will agree that all amendments to S. 510 will require 67 votes.
  • Senator Coburn will offer amendments, but they will not get 67 votes.
  • The Senate will add language repealing the 1099 tax provision.
  • The Senate will pass the bill (this needs 51 votes)
  • The House will agree to accept the Senate bill as written with no changes.
  • The bill will get sent to President Obama to sign before Congress adjourns.
  • The President will sign the bill.

Maybe, but this does not sound like a done deal to me.  For one thing, opposition to S. 510 seems to be getting noisier.  Remember the adage “politics makes strange bedfellows?”  Take a look at the groups who now oppose the bill, united in their opposition to giving the FDA or government any additional authority:

  • The health food industry
  • The dietary supplement industry
  • The meat industry: American Meat Institute, Cattlemen’s Association, etc.
  • The Tea Party
  • The raw milk community and its legal arm, the Farmer to Consumer Legal Defense Fund
  • Some, but by no means all, small farmers and advocates for them

Missing from this list is Big Agriculture, an absence explained by the fact that the bill does not apply to feed commodities or to seeds.

As for the Tester amendment exempting small farms from certain provisions of the bill: It is opposed by 20 organizations of vegetable growers, and is also is likely to be opposed by companies like Monsanto which do not want the FDA making safety decisions based on size or anything else except risk.

Caroline Scott-Thomas writes in FoodNavigator-USA that all food producers, large and small, should be producing food safely, not least because bacteria do not care how big a farm might be: 

Think about it: If a large-scale cheese maker refused to recall potentially tainted products for financial reasons, as the Estrella Family Creamery is doing, would it inspire dewy-eyed sympathy? I doubt it.

I agree, and also with the comments of Bob Whitaker, the Produce Marketing Association’s Chief Science Officer, who points out that plenty of growers are already using preventive controls like the ones requires by S.510:

There are a lot of very small growers who are already doing this.  I think there is plenty of evidence where growers have already made this a priority and they have been able to do so in a pretty innovative manner. There is a cost to this…But it doesn’t have to be overwhelmingly expensive. A lot of this is common sense.  People need to dive in and understand that this is food and you have to take responsibility for the safety of our food, to the extent that you can… Consumers have to be confident that our products are safe.

I’ve seen this too.  Lots of small food producers do everything they can to reduce microbial risks.  They don’t need a government agency to tell them what to do.

Others, however, won’t take safety steps unless forced to.  That’s why we need this bill to pass.

In the meantime, the debate continues. USA Today, long concerned about food safety, favors the bill. Senator Coburn, however, does not.

Happy Thanksgiving holiday, everyone.

And special thanks to Carol Tucker Foreman of Consumer Federation of America for cluing me in on the latest developments.

Addition: Safe Tables Our Priority (STOP), a food safety advocacy group formed originally by parents of children harmed by eating fast-food hamburgers, strongly favors S. 51o.  Under its auspices, 80 victims of foodborne illness have written a letter to the Senate in the hope that this will help solidify support for passing this bill.

Many of us have traveled to Washington D.C. numerous times to meet with lawmakers, sharing our personal stories as to why stronger food safety laws are necessary; others of us have written opinion pieces, letters, and blog entries urging action on this important legislation. S. 510 would be the first major overhaul of the FDA’s food-safety authorities in decades. It is time to pass this legislation.

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  • Anthro

    Thank you for the clarification. I have been swamped with mail about this, even since I posted on Feedback and you kindly responded.

    I am ready to disavow the Tester Amendment and simply push for passage as written. The same people that would risk drinking raw milk, just because its from a nearby farm, are pushing the Tester Amendment. Although I shop at WF and coops, I distrust their usually misguided efforts to subvert regulation aimed at public health. I quit buying the local brand of organic milk when I found out that they refuse to use antibiotics EVEN WHEN A COW IS SERIOUSLY ILL. They use “homeopathic remedies”! Eeeekkkk. Water (with a memory for all the pee and poo it’s been in contact with) for sick cows!

  • Miranda

    Are the rumors true about the bill outlawing vegetable gardening and vegetable trading amongst friends/family/neighbors, etc.?

  • http://wholehealthsource.blogspot.com Stephan

    We are regulating our own traditional agricultural system into oblivion. Well-meaning public health authorities are concerned about short-term health risks from food-borne illness, but ignorant of long-term health risks due to the insidious degradation of our food system. For example, levels of specific essential minerals in produce have dropped by up to 70% in the last half century, mostly due to high-yield plant varieties. Who is growing the old high-mineral varieties? Hint: you won’t find them at Wal-Mart. They’re becoming increasingly expensive and difficult to obtain because of onerous laws like 510 that are designed to reduce the risk of food-borne illness in large-scale operations.

    I grew up drinking unpasteurized apple cider. In Washington state, I have to get it under the table. Not because it’s illegal, but because the laws are so restrictive that it’s practically impossible to produce legally on a small scale, which is the only scale on which it’s ever been produced. Raw cider tastes better, it’s as simple as that. I have a right to drink the same cider I grew up drinking, and I’m willing to accept the almost negligible risk of food-borne illness.

    I don’t want to make it illegal to eat sterilized industrial food if that’s what people want, nor do I want them to prevent me from eating the kind of food my grandparents ate. 510 is another step toward the insidious industrialization of our food system.

  • Michael Bulger

    @Miranda: No, those rumors are not true. This bill covers the food facilities that sell to large markets.

  • Anthro

    @Stephan

    I truly sympathize with your view as far as it goes, but public health must trump individual fancies. I also grew up drinking fresh-pressed apple cider, and still do so–at a friend’s farm. That’s fine, but that friend would not start bottling and selling that cider, because he knows that someone could get sick from it for a variety of reasons and he doesn’t want to be responsible for that.

    We have to get past this “me-ness” in our culture. You say you obtain your cider “under the table”; well, what’s wrong with that? I guess that’s not very different from me having cider at my friend’s farm or eating my own chickens’ eggs raw in Caesar salad dressing. But I would not use store bought eggs the same way.

  • http://wholehealthsource.blogspot.com Stephan

    Hi Anthro,

    Thanks for your comment. When I was growing up in Virginia, everyone bought raw cider at roadside stands and no one thought twice about it. Raw cider tastes better than pasteurized. I understand that it carries a risk of foodborne illness, and I sincerely sympathize with people who have been hurt by foodborne illness. But let’s keep things in perspective. Drinking raw cider is safer than getting into your car and commuting to work.

    Is it really worth it to further restrict our access to quality food when the risk of food-borne illness is already low, and the risk of serious disability or death from food poisoning is even lower? I call that hysteria and fear-mongering. I’m not in the Tea Party. I’m a liberal. I think regulation is often a good thing, but this has already gone too far. Food quality needs to be a top priority in this country or else our health and well-being will continue to lag behind most affluent nations.

  • Michael Bulger

    If you don’t mind my weighing in, I thought that this might be pertinent to your discussion. At least 11 sickened this month from E. Coli O157:H7 in unpasteurized apple cider. http://dhmh.maryland.gov/pressreleases/2010/ma110510.html

    Many more people get in cars and commute to work than drink raw cider. I think before we start making statements that one is safer than the other, we have to really crunch the numbers. How many people drive vs. how many get injured in accidents.. How many people drink raw cider vs. how many get sick? .. etc.

  • Stephan

    Hi Michael,

    I acknowledge that raw cider carries a risk, but I don’t think citing an individual case helps us determine what that risk is. I take your point that people don’t drink raw cider as much as they drive, so how about another analogy. Roughly ten times more people die from car accidents than food poisoning each year. Furthermore, most of those food poisoning incidents have nothing to do with the producer or distributor, but rather with how food is handled by individuals after it’s bought. How far do we need to reduce that risk, and at what point are we sacrificing other important priorities?

    I like to eat raw oysters too. I don’t want anyone pasteurizing my oysters. I understand that it carries a risk, but I’m a grown-up so I get to make that cost-benefit decision for myself. Put a label on the raw cider, put a label on the oysters, on the non-irradiated meat, so that people know that there’s a risk, and allow them pasteurized alternatives. But don’t make it illegal or prohibitively expensive for people who want to make the choice to eat top quality traditionally prepared foods.

    I don’t want to force people to drink raw cider, and I don’t want them to force me to drink pasteurized cider. Regulating healthy traditional foods out of existence is hysterical nanny state politics at its worst.

    Dr. Nestle said that “Some, but by no means all, small farmers and advocates for them” are against 510. There may be a few small-scale farmers who are for it, but I haven’t met one yet. Those I’ve spoken to feel highly threatened by 510. And why not, it is designed for large-scale producers and is generally onerous for the small ones on a number of levels. It exacerbates the competitive advantage that large-scale producers already have because they have the administrative and financial resources to comply. We are not just regulating out quality food, we are regulating out the farming profession.

  • Michael Bulger

    First of all, saying that the majority of foodborne illnesses are a result of consumer behavior speculation, no? Besides, when did it become the consumer’s job to keep E. Coli O157:H7 and other livestock bacteria out of their food?

    They are not the source of the contamination. Eleven people did not put the same strain of E. Coli in their apple cider, just as thousands of people don’t put the same strain of Salmonella in their eggs.

    There are far more consumers than food processing facilities. Trying to catch the problem before it fans out across hundreds of millions of people, as this bill does, is very reasonable.

    The point of S.510 is to regulate the 160,000 or so domestic “facilities,” as well as the ones overseas. Not the 2 million or so farms. The HACCP section and the inspections that the farmers are being told will run them out of business don’t even apply to them.

    The FDA defines a facility in a way that specifically exempts “Farms, i.e., facilities in one general physical location devoted to the growing and harvesting of crops, the raising of animals (including seafood), or both.” http://www.fda.gov/Food/FoodDefense/Bioterrorism/FoodFacilityRegistration/ucm081610.htm

    Even before the addition of the Tester amendment (which exempts small, local facilities) the bill contains plenty of language directing FDA to write regulations that either exempt small businesses or are not onerous.

    There is a lot of hype about how terrible the regulations will be for small farms. The thing is, most every farm will be exempt. Even for the facilities, the actual requirements have not been published and won’t be until after a public comment period.

  • http://www.healthyfoodcoalition.org Harry Hamil

    Dr. Nestle,

    Your statement, “Take a look at the groups who now oppose the bill, united in their opposition to giving the FDA or government any additional authority” is false.

    As a grower, distributor and retailer of local, healthy food who has averaged 60+ hours/week for over 16 months working to defeat S 510, I know a lot more about what and why we are opposing S 510 than you do.

    First, you continue to stress the grants of authority to the FDA in S 510 when, in fact, other than mandatory recall, it grants very little additional authority to the FDA. Almost every new “authority” cited by the apologists for S 510 has already been asserted or actually exercised by the FDA previously. This is the case in both of the sections resisted by the local, healthy food movement via Tester-Hagan. The authority to impose the new Sections 418 Hazard Analysis and Risk-based Preventive Controls (the HARPC plan requirement for facilities) and 419 Standards for Produce Safety (minimum standards for the safe production and harvesting of fruits and vegetables) have both been repeatedly previously done (e.g., Juice HACCP and various guidances for tomatoes, etc. which would just as well have been written as “rules” rather than “guidances.”)

    The sections of S 510 creating these new laws are only requiring that these regulations be created and declaring that the failure to comply is a “prohibited act.” This is a Congressional stamp of approval for 2 regulatory techniques that have been demonstrably shown to have very limited positive impact while having numerous negative impacts on food safety. In fact, in the case of the Standards for Produce Safety, the rulemaking process has already started. Were there no existing authority, it could not have started. The FDA forecast a proposed rule by year-end but no one believes they will meet the schedule because as everyone in the produce industry knows, no one has enough knowledge and wisdom to write such rules.

    Second, Congress can’t grant itself additional authority under our system of government. All it can do is exercise the powers granted it under our Constitution and only the combined action of the States can alter that power.

    Third, each group you named has it own rationale for opposing S 510 and the reasons are many. I agree with the majority of their reasons. Probably, my largest reason for opposing S 510 is that I will not stand idly by while our legislators are misled by the foolishness, dissembling and poor science of the advocates for S 510 and then pass a law that will dramatically decrease the probability of my children and their children to be able to buy local, healthy food. This is a joint effort with my wife because I wouldn’t have been able to do this had she not willingly been taking care of our store for local, healthy food while I do it. That is why I’m up early on Thanksgiving morning working at my computer to defeat S 510.

    Fourth, the intellectual arrogance and the poor quality of the science that I have seen coming from the supporters of S 510 over these last 16 months has been astonishing. They have only been exceeded by the closed mindedness shown to additional or new information. Every outbreak, every recall, no matter what it involves, is held up as evidence supporting the passage of S 510. What poppycock!

    Once again, I challenge you and every other apologist for S 510 to come to NC and debate the merits of this legislation and its approach to food safety with me and others from our thriving local, healthy food movement. We’ll happily give y’all the same reception we gave the USDA and the proponents of the National Leafy Green Marketing Agreement (NLGMA) when they came to Charlotte for the last of those hearings on 10-22-09.

  • Cathy Richards

    Since cider seems to be a grabber here, let’s look at some of the issues facing us today vs. when we were young.

    1. Processing to consumption time was much shorter. People bought it locally, and drank it within a short time (or froze it). If that’s what you still do, you will most likely luck out. Now, apples from many orchards get sent somewhere centrally where they get comingled and co-contaminated, then it is shipped all over. Shipping = Time, Time = incubation, incubation = illness/death.

    2. Deer didn’t have as much e.coli in their droppings then as they do now, due to urban/ranch/orchard/forest interfaces. One fallen apple with droppings on it can contaminate an entire processing plant, and overtime the levels of e.coli are high enough to cause illness.

    I do indeed miss and long for the more-innocent (or less guilty) food systems of our youth. Just not sure getting back to those days can be legislated. Food safety can be, though.

  • http://Wholehealthsource.bloodspot.com Stephan

    Hi Michael,

    What you didn’t mention is that many producers also process their food in ways that require “facilities”. For example, pressing apple cider requires a facility. Butchering meat requires one. So these regulations absolutely apply to small scale farmers, especially those that sell “value added” products at farmers markets. Small scale producers are not a bunch of chumps who are being misled into fearing this legislation. They know they are legitimately threatened by 510, which is why most of them oppose it.

  • Michael Bulger

    Stephen,

    Butchering meat is regulated by the USDA, not the FDA. Regardless, the bill has for a long time included language directing FDA to make regulations flexible and able to be practiced by “small businesses such as a small food processing facility co-located on a farm.” Same goes for paperwork. It also allows FDA to exempt small, low-risk operations.

    That is the reality, but it did not stop a flood of internet- for lack of a better word- nonsense. Now that the Tester amendment is shaping up to be part of the bill small, local facilities are exempted from the regulations about which the real sustainable ag community was somewhat concerned.

    Okay, but the bill never was going to outlaw backyard organic gardening or seed saving. I’m not saying small farmers are chumps, by any means. Far from it, and I respect the profession and their dedication. What I am saying is that the internet jockeys who’ve purported to be representative of the small ag community were propagating a lot of nonfactual information and doomsday predictions.

  • http://Wholehealthsource.bloodspot.com Stephan

    Yes the Tester amendment will alleviate most of my concerns about 510 if it passes. My real concern is 510 passing without that amendment. Time will tell.

  • Cathy Richards

    Everyone might be interested in reading this report on food safety issues facing small/medium farms.
    http://www.iatp.org/iatp/publications.cfm?refid=106746
    (It takes a while to load).
    If the url doesn’t work/load, search for “Bridging the GAPs” and “Marie Kulick” and “Institute for Agriculture and Trade Policy”.

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  • Genie

    Legalize Freedom.

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