People inside and outside the Beltway had trouble keeping up with the many procedural turns taken by the FDA Food Safety Modernization Act. In the end, the bill was voted on twice by the Senate and three times by the House. President Obama signed it on January 4, 2011.
The final bill gives FDA mandatory recall power and directs the agency to inspect facilities at least every 5 years. Some have lauded these as important improvements, particularly in light of the complete lack of inspection of the Wright County egg facilities or the Peanut Corporation of America’s Texas plant. But the bill does not ensure that FDA will use that recall or inspection authority responsibly.
It does nothing to address the revolving door between the agency and industry, epitomized by Michael Taylor’s current position as FDA’s food czar following his work for Monsanto. Nor does the bill address the underlying causes of most foodborne illness, namely the practices of the CAFOs and industrialized agriculture production and processing systems. These fundamental flaws make it far too likely that the bill will do little to actually improve food safety.
Indeed, the bill increases FDA’s ability to act unfairly and arbitrarily by lowering the standard for “administrative detention,” whereby FDA can stop food from being moved or sold for a period of time. The previous standard required FDA to have “credible evidence” that the food posed a “threat of serious adverse health consequences.”
Under the Act, now FDA need only have “reason to believe” that the food is “adulterated or misbranded,” which could include such things as incorrect labeling. FDA already detains food on flimsy grounds, so this change may not make a major practical impact. But the Act’s new standard makes it easier for the agency to defend these detentions. In addition, the Act gives FDA the power to levy fees for such things as re-inspection of a facility, giving them new power to harm facilities they don’t like simply by finding minor problems and requiring multiple re-inspections.
The bill’s extensive new requirements for food producers, particularly the produce safety standards and hazard analysis plans (similar to HACCP), favor large-scale industrial producers over small-scale sustainable producers. Senator Tester of Montana fought for an amendment, co-sponsored by Senator Hagan of North Carolina, to exempt local food producers from these portions of the bill.
In the final amended bill, producers who gross under half a million dollars (adjusted for inflation) and who sell more than half their products directly to individual consumers or to “qualified” retailers and restaurants are exempted from the produce safety standards and hazard analysis plans. “Qualified” retailers and restaurants are those that are either in-state or within 275 miles of the producer; there is no geographic limit on sales to individual consumers.
The Tester-Hagan amendment was essentially damage control. Given the overwhelming public pressure to pass a food safety bill, it was imperative to get an amendment to prevent the bill from crushing small local producers. Even with the amendment, the bill poses problems for the local foods movement. In addition to the lowered standard for administrative detention discussed above, the bill will impose extensive new regulations on medium-scale producers. But the amendment succeeded in carving out a sphere of protection for the most vulnerable, small-scale business, keeping them alive to fight the next fight.
The Tester-Hagan amendment also goes beyond damage control by setting an important precedent, namely that local food producers selling directly to consumers are different, and should be regulated differently, from the mainstream conventional food system. This should be an obvious concept, but it has never before been recognized by Congress.
The importance of this precedent can be seen in Agribusiness’ reaction. Major industry organizations that had supported the food safety bill for over a year opposed the bill as soon as the Tester-Hagan amendment was included. These groups attempted to use every delay as an opening to strip the amendment back out, failing only because of the grassroots support for the amendment.
The Agribusiness reaction complicates citizens’ ability to hold their Congressmen accountable. Some people have assumed that a “no” vote on the bill means that their Congressman was listening to the grassroots and opposed new FDA regulation. However, many of the Congressmen who voted against the final bill did so because they were listening to the Agribusiness interests. So take care and don’t assume that your Congressman is an ally – or an enemy – based solely on whether he voted “yes” or “no” on the bill.
Agribusiness’ control of Congress and the agencies developed over the course of several decades, as more and more family farmers were lost to consolidation and consumers became more disconnected from the source of their food. It will take a lot of time and work for the local foods movement to reverse this trend.
In the coming year, Congress will be determining the FDA’s budget, while the FDA begins the rulemaking process to implement the food safety bill, and it is critical that the grassroots stay active and involved. We must take the principle recognized in the Tester-Hagan amendment – as Senator Tester stated, that our farmers are growing food, not commodities – and build on it to recapture control of Congress and the agencies.