by Marion Nestle
Aug 14 2010

Two more analyses of S. 510 to ponder

Yesterday, I posted comments from the Consumers Federation of America about the latest version of S.510. With luck, the Senate will vote to pass this bill in September and will reconcile its version with the House bill passed a year ago.  Here are two comments based on Senator Harkins’ staff analyses:

1.  The National Sustainable Agriculture Coalition (NSAC) says that the latest version of the bill includes these improvements (my emphasis):

  • 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.

2.  Bill Marler provides additional information:

Here is Chairman Harkin’s mark-up and section by section summary – this is the version of the bill voted out of the HELP Committee in mid-November and here is the most recently approved version as of last night.

Senator Feinstein has not released a copy of her BPA amendment — however, she is now saying it will only be baby bottles, sippy cups, baby food, and infant formula.

Here’s the Senator Tester amendments as they were introduced in April (I’m sure the version they’re working with now looks quite different after months of negotiations, but the principle is likely the same).

Marler also points out that only foods that are already regulated by FDA will be subject to S. 510, as its Section 403 maintains the existing firewall between FDA and USDA-regulated foods and agricultural products.

Keep reading.  This is critically important legislation to help the FDA ensure food safety.

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  • I’m pleased to see some of the changes you’ve highlighted. While food safety is vitally important, we also need to remember that our food in grown outside. Some of the potential regulations around animal encroachment are not realistic for a small diverse farm. Nor do they support the types of ecologically sound and diverse environments which lead to healthful water bodies, soil, or air.

    The challenge, of course, is creating legislation that is realistically turned into helpful regulations which protect consumers while also not driving responsible producers out of produce production. The last thing our food system and health needs is less leafy greens!


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  • Cathy Richards

    Thank you so much for the highlights Marion. These are useful to me in my work in Community Nutrition.

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  • These amendments still don’t diminish the danger. First, the are overly broad and open to interpretation. Second, they are discretionary, giving the FDA instructions to be more flexible with small farmers, however the real purpose is to centralize more control of the food delivery system in the US with the Federal Government. This bill is actually part of the Feds “Food Defense Program” and is tied into Homeland Security as well, giving it the potential to do an end-run around the so-called firewall between FDA and USDA-regulated foods and agricultural products.

    Section 110: Requires the HHS Secretary to submit to Congress: (1) a comprehensive report that identifies programs and practices that are intended to promote the safety and supply chain security of food and to prevent outbreaks of foodborne illness and other food-related hazards that can be addressed through preventive activities; and (2) biennial reports on food safety programs and practices following the submission of the comprehensive report. Requires the HHS Secretary and the Secretary of Agriculture to submit to Congress, biennially, a joint food safety and food defense research plan.

    Imagine a simple scenario – an outbreak of salmonella on organic spinach…how long would it take for them to recall or ban the sale or even just giving away of all organic spinach, even that gown in your own backyard. This example is a bit simplistic but it isn’t completely out of the realm of possibility given the right circumstances — because this bill is overly broad and discretionary making it possible to “interpret” it in any way convenient.

    In general, the FDA and USDA are always in control of big pharma and agribusiness and they are always more inclined to protect their profits than your right to access healthy organic food.